Submission Date:
Question:
We have received several questions about setting graduation ceremonies to music and streaming them or recording them and sharing them with students. What are the laws surrounding this? There seems to be a lot of misinformation out there. Below is a question I received:
The slideshow for the [public] high school graduation is complete. [T]he students would like to have songs from “High School Musical” added to the slideshow. Is this possible? If copyright comes into play and we can't there will be no music added to the show. Please advise, We have viewed many other shows from various high schools and at the end of the show it simply states "we do not have rights to this music."
Answer:
The need to migrate ceremonies online has created a tsunami of copyright concerns. What is a ceremony without the right music? But this question pertains specifically to high school graduations for public schools, so we’ll confine it to those institutions.
Readers, I have to be real with you: a newly minted Supreme Court Case, Allen v. Cooper[1], means public high schools (which are arms of the state) are arguably immune from liability for copyright infringement. In that case, the court invalidated the “Copyright Remedy Clarification Act (“CRCA”), which had expressly removed state’s “sovereign immunity” to a copyright suit. So on a very pragmatic level, some public schools, colleges, and universities may be adding that to their risk assessment of questions like this.
But professional educators likely don’t want to do the wrong thing simply because they are arguably immune from being punished for it. As Justice Kagan, writing in Allen and quoting an expert witness put it: “what State, after all, would “want [] to get a reputation as a copyright pirate?” So we’ll proceed just as the member’s question suggests: that they want to do the right thing.
With that in mind, here is my answer to the question: “[T]he students would like to have songs from “High School Musical” added to the slideshow. Is this possible?
My first bit of guidance is to check the school district’s license with either ASCAP or BMI (this is the license that covers permission to play music at a high school dance). It may be that some streaming rights got thrown into your public performance license. This isn't typical, but you never know, and if you have the right clause in your contract your problem could be solved right away (and in fact, your problem never existed).
If there isn't a contract that already gives your school permission to use the song(s) as the member describes, your school needs permission. This can be done through any number of licensing agencies.
As but one example, the music to “High School Musical” is available for licensed streaming through the Harry Fox Agency:
(As can be seen, your school could even decide to use the karaoke version.)
The bad news is that it’s sort of a pain to obtain the license; you have to register and there is a fee. Further information can be found at the link here: https://secure.harryfox.com/songfile/faq.jsp#faq2.
[NOTE: since a school district is one legal entity, it is also good to check and see if the district itself has an account already. Signing up for a service like this does not need to be done on a school-by-school basis. Of course, this brings us to school policy and procurement issues, and for that, I refer to the attorneys serving the BOCES that serves your school!]
I hope the red tape doesn’t get in the way of the students having a good ceremony. They have been through enough this semester.
[1] You can find the full text of the case and some commentary here: https://www.scotusblog.com/case-files/cases/allen-v-cooper/
