Submission Date:
Question:
An internationally known band released various music videos for the purpose of a contest they were holding. Fans were asked to create a new video using the clips provided. One of our professors downloaded and saved the music videos and would like to share them with his students so they can use them for an editing project. He would like to post the copied files in his password protected class management system (Black Board.) However, we would also like his students to be able to share their projects either in an eportfolio or online.
My initial reaction is that he should get permission from the copyright holder / publisher for permission even though the band released the content for a contest. I see many danger zones.
Answer:
Some of the trickiest copyright questions I get relate to student work.
Why are they tricky? Because of a self-imposed rule I have: find a way for the work to be done; don’t let copyright interfere with art and science.[1] In other words, our copyright glass of scholarship should be half full…of scholarship, not fear of lawsuits.
That said, most readers of this column will know that “educational use” does not justify the wholesale infringement of works, even if the purpose is scholarship. To use a work without permission, the use must meet the criteria of “fair use.”[2]
But I’m getting ahead of the question. Let’s bring it back to the beginning.
What’s the tricky issue here? In this scenario, the band “released various music videos,” and asked the public to create new works based on the old, for entry into a contest.[3]
The band was essentially asking the public to create “derivative works,” which are new works based around a copyright-protected original (think movie sequels, musicals based on books, and paintings of paintings).
The faculty member plans to retain copies and direct students to use them after the completion of the contest, both for assignment and portfolio purposes. Is that cool?
Now, if the band’s videos were expressly put into the “public domain” for the contest (meaning: no copyright protection) the question ends here. If the clips aren’t protected by copyright, the faculty member’s plans are just fine (it’s cool).[4]
Further, if the band gave a perpetual, irrevocable permission to any person who generates a new video using the clip, to use the clip for whatever reason they want, the question also ends here (again, retain the copy and using it as planned is cool).
But if instead, the band kept the videos protected by copyright,[5] and gave the public permission for only a limited amount of time (say, the duration of the contest), for a limited amount of purposes (say, for entering the contest), then yes, we are in a “danger zone” (not cool).[6]
However, before I agree that the ideal solution is to get the copyright owner’s position, I do want to make a case for fair use, which allows people to use copyrighted works in way that would otherwise be infringing (make copies, make derivative works, and even at times to sell them).
Based on the scenario described, it is not clear if the retention of copies as described in the scenario would be a fair use. It would have to be justified under the four fair use factors, with the school and student being able to show that the retention of a complete copy and use of the clip for assignment and student portfolio purposes was justified.
The way for a school to do this is to use their fair use assessment form[7] and retain a copy.
To me, aside from the legal concerns, this is also an ethical issue. A faculty member should not encourage a student to unknowingly infringe another’s copyright, especially if they know that student might include that work in an online portfolio of work. This could put the student in legal trouble that is independent from the liability of the school.
Students, as individuals, do not have the same protections that higher education professionals have. Schools, if they conduct a bona-fide fair use analysis, can limit the damages from alleged infringement. Schools also usually have insurance for this stuff. Newly-minted B.A.’s and M.F.A’s typically do not have the same resources. This means, when the student gets sued, they are in a much riskier place than the school or the faculty member.
All that said, remember the mantra: find a way for the work to be done; don’t let copyright interfere with art and science. What does this mean? While being cautious to not promote infringement, a faculty member in a medium such as film, or music, should not let students operate in ignorance of fair use, which is so important to both mediums. Without sampling, without artistic call-and-response, we suffocate creative innovation.
If that sounds complicated, it is! I will be reaching out to this member to talk the specifics through (that part is confidential).
[1] Promotion of “science and the useful arts” is the reason we have IP law in the first place (see U.S. Constitution, Article I, Section I, Clause 8).
[2] Or Section 110(a) or (b) of the Copyright Act. But you can read out that here https://www.law.cornell.edu/uscode/text/17/110.
[3] As gimmicks go, I like this one. I wish my favorite author, Umberto Eco, had invited me to write a chapter of “The Name of the Rose.” I would have had Adso and William fire-proof…uh, sorry, spoiler.
[4] I speak legally, not pedagogically. I have no idea if this would be a good film class assignment; I was a Russian History/U.S. Constitutional law major at an experimental school with no grades or tests (Hampshire College). Other than once attending a class on the classic film “Battleship Potemkin” and whatever skills can be gleaned from serially watching the musical “1776,” I have zero credentials to evaluate the curriculum of a film course.
[5] Which, by the way, the band might not even own.
[6] For the record, if I were the lawyer advising this band, the contest terms would have contained a clause allowing my client to revoke permission to use the clip and participate in the contest in the event an entry was contrary to their values (racist, sexist, transphobic, etc.).
[7] More information using a Fair Use Assessment form can be found here: https://copyright.cornell.edu/fairuse
Tag:
Academic Libraries, Copyright, Derivative Works, Fair Use, Music
