Copyright Principles in Action

XII. Videotaping Broadcasts

A. Fair Use

Many educational or documentary broadcasts are videotaped by the broadcaster or producer who will hold a copyright to the video and will also have (hopefully) acquired synchronization rights to any background music and performance rights to the script. Pure news photography or reporting (since it is entirely or largely factual) may not be copyrightable in the first place. However, the video record of editorial comments, interpretation, and analysis (which often accompany today’s television news) would be covered by copyright.

University faculty sometimes wish to videotape broadcasts in order to replay them for their classes. The safest way to proceed in this situation is to rent an authorized video from the original producer or its distributor. If an instructor wants to videotape a broadcast "off the air", he or she must be sure the portions used are within the concept of fair use. Here the "nature of use" factor would certainly be in the University’s favor. The nature of the work would depend on what was taped with there being more tolerance of copying news than of fiction and very little for copying a dramatic work. The amount copied will vary with the instructor’s need with short segments (preferably just illustrative snippets or continuous portions aggregating less than 5% of the total length) being the safest. The impact on the market will depend somewhat on whether the producer is selling videocassettes of the production. If not, then the market would seem to be syndication rights to other broadcasters. It could be argued that showing the performance to students will not hurt the market and might even stimulate the market as, after they gain an understanding and appreciation of the content through their class, they will want to see the next broadcast or rent the video to see it again. If the production was a newscast, there would seem little market effect either way since it will soon be "old" news (unless it is somehow the memorialization of a truly historical moment).

B. Face-to-Face Instruction

A second possibility to make the copying and subsequent "performing" of the videotape non-infringing is to qualify it under Section 110(1) of the Copyright Act (discussed above in Part III. B 2) pertaining to face-to-face instruction. The difficulty here is that that section limits such "performance" of "motion picture[s] or other audiovisual work[s]" to those "given by means of a copy …lawfully made." Thus, playing a rented video (the license for which permitted educational viewing) would qualify. The playing of a tape made by the University without prior permission would not seem to be "lawfully made". The Supreme Court decision in Sony Corporation of America v. Universal City Studios, Inc. upheld the use of a personal VCR to do (not explicitly permitted) on-air taping of television shows. However, that decision is based on the personal convenience of the owner of the VCR to "time-shift" his or her viewing of a particular program. If the Sony precedent applied to an instructor’s taping a program for his "convenience" in showing it to his or her class, that would constitute a "lawfully made" copy. However, there is considerable doubt that such a professional re-use would be within the spirit of an individual merely time-shifting for her own viewing pleasure (e.g. because of work or vacation conflicts).

C. The Kastenmier Guidelines

There are Guidelines incorporated in legislative history for the Copyright Act of 1976 that some courts have noted favorably. These are referred to as the Kastenmier Guidelines after Representative Kastenmier who was active in formulating and supporting them. While they do not have the force of law, they are a type of informal "safe harbor". They specify that an instructor at a non-profit educational institution may (one time only) make a tape and show it to her class if the broadcast from which it was taped was on public television. The tape may be shown to the class no more than twice, both times in a classroom setting. The showings must occur within the first ten "consecutive school days" following the taping. It seems probable that "consecutive school days" can be construed to mean "consecutive days on which the class meets" to take account of Monday-Wednesday-Friday (etc.) scheduling at colleges and universities. The tape may be retained by the instructor/institution for a total of forty-five calendar days after taping but cannot be shown to the students beyond the "ten consecutive day" period.

XIII. Use of Copyrighted Music

Musical works of art present several possibilities of copyright ownership and therefore may be challenging to a would-be copier or performer who needs to know from whom to seek permission. The composer is clearly an "author" and may have assigned his or her copyright to a music publisher. An arranger can hold a copyright on a derivative work (i.e. an adaptation or arrangement different from that created by the composer). A performing artist may have "authored" a audio recording or a video record (though they most likely will have assigned such a copyright to the producer or recording company) of their own unique rendition of the music.

The copyright holder of music has exclusive rights in reproduction, and public display and performance. Thus, copying sheet music, or playing a record for the public or showing a video publicly, or making a copy of an audio tape, or performing publicly a piece of music, or incorporating the music into an audio-visual work, or manufacturing/selling "bootleg" records, or composing a derivative variation (all without a license or permission) can be infringing acts. This is true even though a person may have purchased a CD or sheet music embodying the copyrighted work. Such an individual could play the CD for her own listening enjoyment (and a small number of friends or family) in her home, car, or Walkman without need of license or permission, but she could not play it as part of her job as a DJ on at a radio station or at a public dance. Similarly, she could play the sheet music on her piano for her own enjoyment or learning, but could not play it in a commercial, public recital or concert, and could not make copies of it..

Assuming the instructor at a non-profit educational institution was using lawfully obtained sheet music, she could perform a piece in her music appreciation class or her music theory class under the Section 110(1) exemption for face-to-face education. Likewise, she could play a CD to the class. And, the instructor could also perform or play the piece in the course of a distance-education transmission under the provisions of Section 110(2) (see Part VIII, supra) if the performance was directly related to the subject matter of the class. Performance of the piece at a charitable fund-raiser would also be non-infringing (providing the performer herself was not being compensated).

There is also the possibility that the copying of the music could be a "fair use". Providing multiple copies of musical notation (sheet music) to members of a music theory or composition class to illustrate a point would surely be an educational use. Quantitatively, the point could probably be made without copying the entire piece and quite possibly with just a phrase or two. Similarly, a performance or ensemble class might benefit from using a particular passage as a training exercise without needing a copy of the entire work. Certainly musical composition is very creative so that fair-use factor would not support the use. The market impact could vary. If the copyrighted material were a practice exercise book, clearly the publisher would lose sales if the instructor made a copy for each student. Similarly, there would be a commercial impact, if a complete arrangement for a university ensemble were copied. But, if the piece were more obscure and out-of-print, the copying might have little or no impact.

In the same manner, copying short excerpts from CDs to an audio tape for the class to listen to at their convenience to illustrate points covered in the course would almost certainly be fair use. Also, using someone else’s original music in a composition to parodize the original has recently been held by the United States Supreme Court to be a fair use.

The legislative history to the enactment of the 1976 Copyright Act does include Guidelines for the Educational Use of Music and uses within the Guidelines can be considered "safe harbor" uses. The Guidelines permit the "emergency copying to replace purchased copies which for any reason are not available for an imminent performance, provided purchased replacement copies shall be substituted [with the emergency copies presumably destroyed] in due course." Copies of excerpts from copyrighted musical works are permitted for academic (not performance) purposes if they do not exceed in length 10% of the whole work and do not comprise a "performable unit" (i.e. a section, movement, or aria). Copies of recordings of student performances may be made for evaluation or rehearsal. An instructor may make a single copy of a sound recording to use for aural exercises or in an examination. Copies of sheet music must include any copyright notice that appears on the purchased copy.

The American Society of Composers and Performers (ASCAP), Broadcast Music, Inc. (BMI) and SESAC are three copyright licensing entities which serve as performance licensing agents and, among them, they control 97% of the performance rights in the United States. Institutions of higher education typically negotiate for blanket licenses which involve the payment of annual licensing fees covering public performance (live or recorded) of copyrighted music on the campus or off-campus for institutional functions. These performance contexts include everything from "music-on-hold" in telephone systems to music played in "jazzercise" classes to home-stadium half-time shows, concerts and dances.

Music performed as part of a dramatic performance such as an opera, a "musical", or a ballet typically require individually negotiated licenses and are handled through different agents. If the University were to want to record a performance of a copyrighted musical work and distribute it to the public, it would also need a compulsory "mechanical" license from the composer (or publisher who held the copyright). The Harry Fox Agency in New York City is a clearing house for this type of licensing.

Finally, if the University were to produce an audio-visual work (e.g. a recruiting video or a campus-produced telecast) and wished to integrate music with the images, it would require a ‘synchronization license". Negotiations for such a license should be made either directly with the copyright holder (as is often the case when a publisher holds the copyright) or, again, through The Harry Fox Agency.

Music copyright issues tend to get technical. The College of Music can handle routine licensing matters, but novel situations probably should be referred to the UO Office of General Counsel. KWAX, after clearing through Office of General Counsel, usually receives legal advice from a Washington D.C.-area law firm specializing in communications-intellectual property law.

... Continue to Part XIV