Current technology has enabled the incorporation of copyrighted audio material into multimedia projects with relative ease. Yet, the various formats available (CD, DVD, streaming media) all remain subject to copyright law and any use must be evaluated in the same manner as other media. Permission is required for any use that does not fall within fair use.
To assist in determining if your proposed use complies with fair use and adheres to copyright law, featured below are selected guidlines and best practices that should help inform your decisions on what and how much to use.
Guidelines
The following are two sets of guidelines that are often cited as ideal tools with which to measure the use of copyrighted music material in course-related instruction or research. These guidelines both use the concepts of brevity, spontaneity and cumulative effect to illustrate what may or may not be a fair use. They suggest numerical limits as the minimum standards of educational fair use.
Permissible Uses
Educators may incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia projects for their own teaching tools in support of curriculum-based instructional activities at educational institutions.
Educators may use their educational multimedia projects created for educational purposes for a period of up to two years after the first instructional use with a class. Use beyond that time period, even for educational purposes, requires permission for each copyrighted portion incorporated in the production.
Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.
For academic purposes other than performance, multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section, movement or aria but in no case more than 10% of the whole work. The number of copies shall not exceed one copy per pupil.
Printed copies which have been purchased may be edited OR simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist.
A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher.
- A single copy of a sound recording (such as a tape, disc or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyrights of the music itself and not to any copyright that may exist in the sound recording.)
Prohibitions
Copying to create or replace or substitute for anthologies, compilations or collective works.
Copying for the purpose of performance, except as in permissible uses (1) above.
Copying for the purpose of substituting for the purchase of a motion picture, except as in permissible uses (1) above.
Copying without inclusion of the copyright notice which appears on the printed copy.
Using multimedia Projects for non-educational or commercial purposes.
Duplication and distribution of multimedia projects beyond classroom limitations.
Codes of Best Practices in Fair Use
Recently, a number of organizations have published Codes of Best Practices in Fair Use that relate specifically to the educational use of multimedia resources. Below is one such code that addresses the specific research and pedagogical needs of music and music education and should be consulted when appropriate and in concert with previously established guidelines to facilitate a thorough evaluation of the use of copyrighted multimedia content.
The following situational guidelines are excerpted from the above Best Practices in Fair Use of Copyrighted Materials in Music Scholarship and should be used in conjunction with classroom guidelines to inform decisions regarding the use of copyrighted media:
Printed Music: Relatively brief excerpts (that is, only as much as is necessary), whether in full score or in reduction, and whether explicated or used in illustration of an argument or comparison, may be used without permission of the copyright holder. Note that this would apply both to original/unadulterated scores (which may be in the public domain in any event) and to later edited editions. Note that if the scholarly analysis requires reproduction of the work in its entirety, then even this use would constitute fair use. In this case, the scholar should make certain that every part of the reproduction is necessary to the analysis. This position is strengthened if the work itself is quite short.
Lyrics: Citing song lyrics can often be essential to an argument or explication, or can provide a means for orienting a reader to a musical description. Thus, citing lyrics can be essential to learning—the very basis for copyright—and so must be permitted under fair use. Reasonable care should be taken to ensure that no more of a lyric is quoted than the critical or scholarly context requires; however, this admonition permits a very wide variance in the actual length of quoted material (extending even to quoting an entire lyric), as long as the quoted material is necessary to the argument being made. The requirement of some publishers that authors obtain permission for every quotation of song lyrics should be discontinued, as that practice runs counter to the principles of fair use.
Music Recordings: Relatively brief excerpts (that is, only as much as is necessary) of commercial recordings or other recordings of copyrighted material, whether explicated or used in illustration of an argument or comparison, may be used without permission of the copyright holder.
Transcriptions of Recordings or Live Performances: Depending on circumstances and notational method, musical transcriptions might be considered artifacts of scholarship or copies (similar to translations). An argument may be made that there should be no restrictions on the publication of transcriptions that fall in the first category, since the transcription actually is the scholarship; this Best Practices in the Fair Use of Copyrighted Materials in Music Scholarship would have to be considered carefully on a case by case basis. If the transcription is being used as a substitute for the recording, as an aid to explication, an illustration, or a basis for comparison, the same rules should apply as to music recordings; in such cases, relatively brief excerpts (that is, only as much as is necessary) of copyrighted recordings without the permission of the copyright owner are allowed.
To comply with the Fair Use Guidelines for Educational Multimedia when using Brightspace, you should:
Make sure the portions of copyrighted material you are using in your course meet the standards of the Guidelines.
Put the copyrighted material in a section of your Brightspace course site that is secured (using Course Settings: Area Availability in the Control Panel). This should meet the distribution requirement, because only students enrolled in your course will have access to that area.
Use streaming audio and video, rather than uploading the files for students to download. Contact Steve Salina (ssalina@bentley.edu) at the Academic Technology Center for assistance.
In most cases, this should comply with the Congressional guidelines on fair use.
Adapted from:
Please note that the above information is for reference purposes only and should not be construed as legal advice. It is advisable to always conduct a Fair Use Analysis whenever there is a question regarding the lawful use of copyrighted material. If, after careful evaluation, it is determined that the use of particular material would violate copyright law, or if you need to purchase copyright permissions for such use, please contact Matthew Van Sleet at 781.891.2311 or mvansleet@bentley.edu.