This week I interviewed Dr. E Michael Harrington about copyright law in a classroom setting. Fellow musicians and music teachers alike submitted questions for him. Dr. Harrington is a composer, musician, expert witness, intellectual property consultant, and professor. (Not conveyed in the print Q&A is his thick Boston accent.) To read more about Dr. Harrington, check out his website: http://www.emichaelmusic.com/
SO: What are some basic copyright right facts that every music teacher should know?
EMH: The first thing is, don’t be afraid of copyright. Don’t think, ‘Can I do this? Am I infringing?’ Have your first approach be: this how I want to think, this is how I want to write, and this is who I want to quote. If you want to know more then read and understand some of the copyright act. What is copyrightable? A dance move? Yes. An email? Yes. A drunken blurred photograph? Yes. An invention? No. Can I copyright my name? No. Start to understand what that’s about and that there’s some resources online for that as well as reading the law. First know that there are six rights and five of them have to do with the real world and one has to do with online.
Now, there’s a way to violate all those rights. The rights are not as hardcore as they sound. You and I have broken the copyright law and we’re required to break the copyright law. When you write a paper you’re required to quote from other sources and we do and we site them, we say it’s this person etc,. That’s violating the copyright act, you’re taking work without someone’s permission and duplicating it and using it in another way. Of course you should be able to because asking for permission on something like that is dumb. So there are times you just have to ignore the copyright and those parts are called the fair use section 107.
SO: How does the fair use clause play a role in education?
EMH: We take advantage of it a lot (laughs).
SO: Yes! Absolutely.
EMH: The fair use has been around since the mid nineteenth century but only got into the law in 1976. It’s the most important thing about copyright. The number one thing is that the copyright act is there to promote the progress of science and useful arts. The point is to make us all smarter and more experienced with the arts, music and literature. The way we do that is to give the authors a monopoly on what they wrote or created. The point is to benefit the public and to benefit the creators. But who’s more important? The public or the creators? The answer is the public. So we, in academia, take advantage of it a lot and we should!
Sometimes though, educators go too far. For example, I can be a professor teaching and I have more money than my students so I could say I’m going to copy the book cause they can’t afford it etc. or make them recordings. On the other hand, if I got excited about a song and I wanted to show the class the lyrics, I’m going to copy and distribute the lyrics. If it’s a spontaneous inspired in the moment then I should just be able to do it. Now if I’m planning to teach it the same way the following semester then it’s nonsense because I know I want to keep using those lyrics. Now that’s a clear infringement. So one time, go ahead and infringe. Infringe like mad!
SO: What if instead of charging for concerts the school changes it to suggested donations only?
Concerts open to the public at the schools are already legally taken care of. The school, which could be in a city or town, has to pay the PROs (Performing Rights Organization) so they get a blanket license from ASCAP, BMI, and SESAC before you even have concerts. Every year before every concert, the school system will do that. So you, the teacher, does not need to worry about that. It’s no longer your concern. Let’s say Ohio State has 65,000 students and another school has 6,500 students. That’s one tenth the size and the school with 6,500 students might pay $800 to ASCAP, $700 to BMI, and $150 to SESAC per year. Multiply that by ten and that’s how much Ohio State pays a year. That’s how that’s taken care of.
SO: What are the rules for parents or students recording a concert and posting it up online?
EMH: YouTube has all these partnership agreements that means they can see music being done, which they can either take it down or distribute money when it reaches a certain level to copyright owners. The worst-case scenario would be that some copyright owners might say take it down but the chances of that happening are slim. Chances are they aren’t going to go after a 4th grader’s parent for posting a video of their kid singing a song. Right now, YouTube is partnering with thousands with musicians, publishers, record labels etc. so the public doesn’t have to pay too much attention to it. Generally speaking, if there isn’t an arrangement already worked out, you’re still violating the law so they can still ask you to take it down.
SO: You’ll still get away with it?
EMH: Yeah, generally, because the laws are spelled out this way. You can’t sue someone unless they made a lot of money off the “theft” of your work of authorship. Say if I was outside your practice room one day and I’m writing down exactly what you were playing. I steal it exactly, you’re angry as hell and what I’m doing is shady and obviously not a good act but I’m not making any money off of it so there’s not much you can do. By the time you get to a court it’s going to cost so much they’re going to say what are the damages here. This guy is a scumbag but you knew that. There are some expectations of course but that’s why copyright is so grey.
SO: Does a public school teacher need permission to alter or arrange a famous tune? For instrumentation purposes or otherwise?
EMH: The technical answer is yes because when you alter or do an arrangement of a composition, most people don’t realize that if you take the original and alter it in any way, then you are infringing on the copyright.
SO: Okay, so let’s say I am missing a French horn section and I want to double or give his or her parts to someone else in the ensemble, can I do that?
EMH: Okay, there’s a literal answer, a realistic, and shades of both. The literal answer is you’re taking someone else’s authorship and basing or deriving from their work. So making an arrangement is making a derivative work and that is part of the 6 exclusive rights a copyright owner has. Derivative work is important. Let’s make the situation even worse, a jr. high school teacher in a small remote town wants to arrange a song that’s owned by a famous rich publisher. This famous rich publisher gets tons of requests per day and there’s just too many to get back to all of them. So you asked but never heard back, what do you do? I say go ahead and make an arrangement, you made the effort. Always ask yourself what harm is it that will come of it. You went through the trouble yet nobody gets back to you; it happens often.
SO: Can you claim it as due diligence?
EMH: Yeah, why not? Normally these schools things just happen and it’s not just broadcasted anywhere so it’s a violation of the copyright act but what was the harm? It’s just like quoting from an article or book but not calling up the author and asking if you can use those three sentences for a thesis or a paper. He might not get back to you in time and your homework is due the next day. It’s not a big deal. Now if you want to keep doing it, market your version or sell your version then you’re asking for some trouble.
SO: What are some considerations on making a promotional video for a public school music program using popular music or music written for instrumentalists? Sound recording/ and or students performing the song in the promotional video?
EMH: If it’s a sound recording, you’ll need permission from the publisher of the composition and the owner of the sound recording. If you want to use part of the sound recording and the publisher agrees, good. However, if you want to use the whole sound recording, then the sound recording owner must agree as well. Now if they don’t allow you to use the little bit then you can evoke the fair use claim or defense and say I was just using 5 seconds or 10 for educational purposes without harm to its market. So those are the considerations you have. It’s a defense though because you are at fault because of how the law is written. The law is straightforward, simple and short, you’re right or you’re wrong. Fair use says there’s grey you can’t mean everything. You should try and get permission. To be safe you can make a list of different songs and contact everyone but that can be a mess. Unfortunately, that’s the case when you’re dealing with two copyrights.
So you’re technically you’re violating copyright on two counts: the sound recording and video recording which requires a Synchronization (sync) license. That’s another thing we didn’t mention: a synchronization license. It’s one thing to use a composition and a sound recording but now you’re syncing the music with visual images and it gets more select. They can say I don’t want to use this song in a certain film. If the students are performing then the sound recording is out but you’ll still need to get permission from the publisher if you’re doing an arrangement and on top of that the sync license since it’s for a video.
SO: What are the chances of us teachers getting caught?
Well, let’s say things go on at the school and it’s not captured or put on YouTube. Then it’s almost none. The chances of getting caught are slim but I wouldn’t think of it that way. Everyone needs to try and live by the copyright act and abide by it. There are times when you have to break it but that doesn’t mean take full advantage of it. I think all educators need some instruction in copyright just so they understand what the rights are.by