Musical Chairs

When schools can (and can't) sell recordings of students' concerts

By Carrie Russell -- School Library Journal, 10/1/2004

Is it a violation of copyright law for schools to make CDs or video recordings of choir and band concerts and sell them? I know we're not allowed to videotape student plays and musicals, so that made me wonder about other types of performances.

—Cheri Estes, media specialist, Detroit Country Day Middle School, Beverly Hills, MI

Copyright issues become truly complex when we deal with musical works. Why? Generally, more than one company or individual (including composers, arrangers, and performers) has an interest in a particular song. Furthermore, dramatic musical compositions (works with a narrative element, such as operas or theatrical musicals) receive greater copyright protection under the law than nondramatic musical works, like Top 40 tunes or symphonies. And compulsory licenses may be necessary when we use music in certain ways. The recording industry generates much of its revenue by collecting royalty payments. This makes perfect sense when one considers that the popularity of a song is determined, in part, by how many times it's played.

Fortunately, for those who work in educational institutions, the use of musical works for teaching purposes in the classroom is not an infringement. However, school districts often acquire blanket licenses from music collectives, such as ASCAP, BMI, and SESAC, that collect royalties on public performances outside of the classroom (like an annual band concert) on behalf of composers, lyricists, and recording companies.

On the other hand, when one records and distributes copyrighted music, another set of rules kicks in. Whether schools sell or give away the recordings for free, they must obtain a mechanical license from the Harry Fox Agency (www.harryfox.com/public/licenseeServicesMechanical.jsp). Does fair use ever apply in these situations? Possibly. But in this particular case, the school should obtain a mechanical license after determining that recording and distributing CDs is not a fair use.

A related topic that I'm frequently asked about is recording music for personal use. When an individual creates a compilation CD of their favorite tunes, we frequently refer to this activity as a "personal fair use," and it's generally considered noninfringing when an individual owns lawfully acquired copies of the recorded songs. This activity becomes less fair when numerous copies of the compilation CDs are made and distributed—like the CDs one might receive as a party favor or at a wedding. Obviously, the activity becomes even more problematic when one sells the copies. At a certain point, the fair-use argument cannot be justified.

Our special education department is planning to purchase a device that can scan a book and read its contents aloud. What are the copyright considerations that I should be aware of? Can more than one student listen to the same book if we own only one copy of it? Are teachers allowed to save the scanned text to use later on with other students?

—Blair Garceau, library media specialist, Jimtown High School, Elkhart, IN

Given the educational context of these copies, this sounds like a fair use. I also believe that scanned copies of books can be saved for future use. My assumption is that the initial copy "resides" within the scanner and it's not accessible unless one uses the device. In a way, the technology reduces the possibility of making more copies.

It's not necessary to buy additional copies of a title to serve more than one student or library user. Since digital materials—like searchable databases or full-text journal databases—often serve many users, librarians may occasionally have to pay higher subscription fees in our licensing agreements. Many e-book subscription rates are also based on the number of users or the number of "loans." Thus far, we only have to purchase print books once and they can be used as many times as we'd like. I truly hope that never changes!

For readers who are interested in learning more about enhancing access to information with technology, visit the Office for Information Technology Policy's Web site at www.ala.org/ala/washoff/oitp/emailtutorials/tutorials.htm.