An Unplanned Problem

After we took our 11th and 12th graders to see the movie Juno, one of our teachers posted a link to the film’s script. Since the screenplay is for sale online and at bookstores, is that OK? When I told him that downloading the entire script for free might be a problem, he replied, “It’s a gray area—it’s alright.” If our students download Juno’s script, are they violating the copyright law?

Alas, the old “gray” area. You’re right: the script has probably been posted on the Internet without the rights holders’ permission. From an ethical perspective (more so than a copyright one), knowingly linking to an illegal Web site is never a good idea. The person who originally posted the script is the direct infringer. But Google users may incorrectly assume that the screenplay is unprotected content. Of course, people link to infringing content all the time. As far as I know, there hasn’t been a court ruling that says that linking to infringing content is a copyright infringement. As for dealing with your colleague, making the argument that the use is unethical may be a more effective way to approach the problem.

Our music teacher would like to set a few picture books to music. Her goal? To turn the stories into operas that she can share with her second-grade class. Although she may need to shorten each story, she doesn’t plan to alter any of the characters or change the story lines. Also, the only people who will hear the operas are her students and their parents—free of charge. Should she contact the various authors and publishers to get permission to use their works in the classroom?

Your use is a fair one. So it’s not necessary to seek permission. This is a good example of what the copyright law is supposed to do—advance learning and promote the creation of new works. This is a nonprofit educational use that doesn’t negatively impact the works’ market. After all, is the teacher deliberately avoiding purchasing the picture books? Of course not—the school already owns them. Would her use result in the loss of future book sales? No. In fact, sales may increase because of the exposure. Were the rights holders planning to create an opera from their picture books? Surely not. By the way, if her class decides to perform the operas publicly, I would argue it’s a fair use.

We’re making a free CD of musical rhymes for our preschoolers. The rhymes are in the public domain, but some of the music isn’t. If a music publisher has gone out of business, whom should I contact for permission? Also, what does the copyright law say about “traditional music”?

You might not have to seek permission to use the music—even if it’s protected by copyright. First, determine if your use is fair or covered by another copyright exception before contacting a publisher and paying a fee.

If music is labeled “traditional,” it means that the music has been passed on orally from generation to generation. Then, much later, somebody put the song down on paper. Traditional music presents an interesting copyright problem, because its original authors are unknown. Plus, over time, folks may have modified the original score. Most likely, these songs are old enough to be in the public domain.

Traditional music may appear in a copyrighted book. But remember, a copyright notice can be slapped on anything, even a collection of traditional music. Once something goes into the public domain, it stays there forever (unless something weird happens, which occurs on rare occasions).

If you can’t find a rights holder after searching all of the sources known to you, then the song is an “orphan work.” Perhaps no one knows who its rights holder is. In that case, you need to decide whether to use the music anyway and throw caution to the wind or not to use it, just to be on the safe side. Fair use does apply to orphan works, however, so always conduct a fair-use analysis first.