When Fair Is Fair

Can schools display copywritten works on TV? It depends

By Carrie Russell -- School Library Journal, 10/1/2005

Our school’s announcements are broadcast each morning on closed-circuit TV. My students are writing ads for various books, and I’d like them to read them on air. Are they allowed to display the book covers?

When copyrighted works, such as covers with artwork, are broadcast on TV, there are at least two exclusive rights that need to be considered—public display and reproduction (since a videotaped copy is being made). In this case, I feel strongly that it’s fine to display and reproduce the covers on air based on an analysis of the copyright law’s four fair-use factors. Since the purpose of showing the book covers (one of the factors in determining fair use) is educational in nature and not for profit, this is a fair use. On the other hand, the second and third fair-use factors—the nature of the work and the amount that will be used—suggest that it’s not a fair use. Why? Because artwork is creative, and the law says creative works deserve a lot of protection. Also, since you’re planning to display the entire cover, you’re using the whole work. The fourth consideration—the effect of the use on the work’s market or sales—is squarely on your side. By displaying the covers, you’re not only encouraging reading, you’re promoting the books. (In fact, the school has already purchased copies of them.) Also, the fact that the program is televised only in your school suggests a fair use.

What’s your take on using music in the classroom? Also, what constitutes a public performance?

A public performance of a musical work is one that is open to the public or at any place where a “substantial number of people are gathered” or one that is delivered to a number of people either simultaneously or to different people at various times (Section 101). The copyright law carves out a number of exemptions to the right of public performance, thereby allowing that some unauthorized public performances are not infringements.

A public performance that occurs in a nonprofit educational classroom is exempt (Section 110[1]). For example, if you are in the school choir, singing in a classroom, your performance is not an infringement. Or if a physical education class requires students to dance and accompanies the instruction with music, that would also not be an infringement. Public performances that occur in the digital classroom are also exempt if they meet the prerequisites of the Technology, Education and Copyright Harmonization (TEACH) Act.

There are other kinds of public performances that frequently occur where music is part of the school’s overall program, such as when music is played to accompany the cheerleading squad or drill team or it’s piped over the public-address system during lunch hour, or when the marching band performs during halftime of a football game. To be on the safe side, some schools have obtained “blanket” licenses from societies like ASCAP and BMI to cover these performances—even though they probably don’t need them. If you discover that a lot of schools have purchased blanket licenses, it would be prudent to obtain one as well—since common practices can influence the interpretation of a law.

If I purchase a video from a vendor that has secured its public performance rights, can I use it for entertainment purposes or as a reward for students’ good work?

If you purchase a video and the price includes public performance rights that transfer to you as part of the sale, it’s fine to use the video for entertainment or reward purposes. Keep in mind, you may have to pay the vendor a higher price for a video that includes these rights. Also, there may be contractual terms associated with the rights. For example, the vendor may stipulate that you can’t show the video for profit-making purposes, or you can’t advertise the video in promotional materials.