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Can the soundtrack from Shrek be used in a video promo?

By Carrie Russell -- School Library Journal, 05/01/2005

We're creating a video to promote our summer program. In addition to being shown to students at local elementary schools, the promo will be broadcast on a local TV station. Since the theme of our program is "Dragons, Dreams, and Daring Deeds," we want to use music from Shrek and Shrek 2. Is it legal to use parts of the soundtracks in our video? Or can we use music from another one of the library's CDs without receiving permission?
—Vicky Jaksic, children's librarian, Kenosha Public Library, Kenosha, WI

The copyright law gives special treatment to musical works. Music often involves different licenses and royalty arrangements. And it frequently has more than one copyright (for example, one that covers performances and another for sound recording). Music also frequently involves more than one rights holder, such as the arranger, lyricist, and record company. A performance or a new, original arrangement of music in the public domain can also be protected by copyright. In other words, music is a big copyright mess. In addition, the copyright law gives certain kinds of music, such as dramatic musical works, even greater protection. So one needs to be particularly careful when using music that is associated with a story, like a musical.

Having said that, this is a question of fair use. That means that you need to assess the proposed use of the work and consider the four fair-use factors: the purpose of the use, nature of the work, amount used, and its effect on the market. In this situation, using small, discrete bits of a song may arguably be a fair use. But in general, I would avoid using extremely popular, contemporary music, like songs from Shrek, without permission—especially considering that the promo will be aired on television and thus widely available.

I haven't seen Shrek, so I'm not sure if it's a dramatic literary work. Choosing the most expedient route to get permission depends on what kind of musical work Shrek is. If you think that it's a dramatic musical work and your use is not fair, contact the individual record company for permission (although getting their permission will be difficult). If the music you plan to use is nondramatic and your use is not fair, you can contact the American Society of Composers, Authors, and Publishers (ASCAP), the Broadcast Music International (BMI), or the Society of European Stage Authors and Composers (SESAC) (getting their permission is easier). Since you will also be making copies of the DVD and not merely performing the music, you will also need to contact the Harry Fox Agency to obtain a compulsory mechanical license.

As part of a poetry unit, one of our English classes is planning to record its students reading poems. We may also give a copy of the DVD to each student. Are we required to get their permission beforehand?
—Vonna Pitel, IMC director and district media coordinator, Cedarburg School District, Cedarburg, WI

I'm assuming that students will be reading their own original poems, rather than other authors' works. As you may know, once an original, creative work is written and "fixed in a tangible medium," the work is automatically protected by copyright law. The law no longer requires that works be registered with the U.S. Copyright Office or that they display the copyright symbol to be protected. One might argue that since the school or teacher requires students to complete assignments, the resulting work should be considered "work for hire," with the school holding the copyright. But true work-for-hire situations are more formal, requiring a contract between the employer and the contractor. Even though kids may often complain about the workload, students don't really work for the school. So they hold the copyright to their poems.

Is permission required when an exclusive right of copyright is exercised? Technically, yes. But we know that in reality, we generally do not bother with these formalities in schools. Should we? Maybe. Perhaps this is a great opportunity for you to teach students about copyright law. After all, students are copyright holders, too. The bottom line? I would recommend that you ask the students if they want their original poems included on the DVD. Give them a choice.