Fair Use for Copyrighted Music in Music courses

[Elizabeth Encarnacion]

Hello! I received the following message from one of our Music instructors in regard to copyright issues with music and images. If anyone has any assistance or guidance that I can pass along to this faculty, I would appreciate it!  

"...How do Fair Use issues relate specifically to music courses -- specifically mine: hip-hop history, given that I depend on copyrighted music and images in my fully asynchronous courses?  I ran into issues with the [trying to convert my] 14-week course [to ZTC], in that I've seen few college-level online textbooks that deal seriously with hip-hop culture and music AND include recent issues.  In addition to the selections offered by the author of the textbook I use for my non-ZTC classes (the required eBook rental is about $45,) I supplement the musical selections with YouTube and Vimeo video.  Finding fully online, high-quality, scholarly resources related to hip-hop music and contemporary African American music is a significant undertaking, in itself. " 

Elizabeth "Liz" Encarnacion  she/they   Assistant Professor Communication Studies  School of Language Arts Chaffey College Zoom meetings for Student Help are by appointment at: https://chaffey-edu.zoom.us/my/eencarnacion Got Campus Questions? Check out the Student Toolbox to find answers!

[Anita Walz]

Hi Elizabeth, 

This is a good question regarding Fair Use and potentially the TEACH Act, library subscriptions, etc. There are a number of possible solutions. 

If your library has a Scholarly Communications librarian or someone responsible for Copyright education I would start there. Your university counsel may also be able to tell you about their level of comfort with Fair Use as this varies by institution. You might also contact Copyright First Responders and ask to be put in touch with contacts from the network in California: https://copyrightfirstresponders.com

If you have a humanities librarian, they may be able to tell you what streaming content that library provides so you can determine if that may fit. 

If you're trying to create sharable and openly-licensed course materials, an excellent report on using portions of items under Fair Use within open educational resources is the Code of Best Practices in Fair Use for Open Educational Resources.

Warm regards,

Anita 

Anita R. Walz

Associate Professor

Assistant Director for Open Education and Scholarly Communication Librarian
Library Liaison to Economics and Legal Studies

Virginia Tech | University Libraries (0434)
560 Drillfield Drive
Blacksburg, VA 24061
arw...@vt.edu | T: 540-231-2204 | Twitter: @arwalz

http://www.lib.vt.edu

Open Educational Resources Guide http://guides.lib.vt.edu/oer

Book an appointment with me.

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[Elizabeth Encarnacion]

Thank you so much for your reply, Anita! I have forwarded it to my colleague to help assist!! 

Elizabeth "Liz" Encarnacion  she/they   Assistant Professor Communication Studies  School of Language Arts Chaffey College Zoom meetings for Student Help are by appointment at: https://chaffey-edu.zoom.us/my/eencarnacion Got Campus Questions? Check out the Student Toolbox to find answers!

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From: Anita Walz <arw...@vt.edu>
Sent: Wednesday, October 26, 2022 7:44 AM
To: Elizabeth Encarnacion <Elizabeth....@chaffey.edu>
Cc: cccoer-...@googlegroups.com <cccoer-...@googlegroups.com>
Subject: [EXT] Re: Fair Use for Copyrighted Music in Music courses

 

CAUTION: This email originated from outside of Chaffey College. Exercise caution when opening attachments or clicking links, especially from unknown senders.

[Corrie Bergeron]

Keep in mind that Fair Use is NOT an affirmative right. It is a legal defense strategy to use in court when you have been sued for copyright infringement. 

Some years ago I was developing a course related to Homeland Security.  For the unit on counterintelligence, I wanted to use the "Spy vs Spy" characters from MAD Magazine as a decorative icon. I knew that such a use would fall squarely under Fair Use. We're a public non-profit college.  I was using only the characters, not anywhere close to the decades-long body of work of the cartoon series, not even a single strip or even just a gag panel. The potential financial impact on the publisher was nil.  

But just to be on the safe side (and because it's the right thing to do) I wrote the magazine asking for permission, outlining my reasoning that while our use fell under Fair Use, I was asking permission anyway.  I got back a form letter that echoed the Emerald City doorman from "Wizard of Oz." Not no way, not no how.  

I forwarded that to our college attorney.  He agreed that our proposed use clearly met all the requirements of the Fair Use carve-out in the law.  But it would cost the college $10,000 to prove it in court, so please just don't use the cartoon.  

As far as we've always understood there is no need to claim Fair Use for linking to a video on a publicly-accessible streaming service such as Vimeo or YouTube. The legalities are covered in the Terms of Service, and any legal risk is assumed by the person who posts the video. (Also note that while such content may be zero cost / freely available, it doesn't qualify as Open.) 

For fast help with classroom technology, Webex, or Panopto, call 525-7129 or email I...@lakelandcc.edu

Corrie Bergeron, M.Ed.

Instructional Designer & Learning Systems Administrator

Instructional Technologies Division

Lakeland Community College

cber...@lakelandcc.edu

NOTE:  I will be out of the office Nov 7-11.

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From: cccoer-...@googlegroups.com <cccoer-...@googlegroups.com> on behalf of Anita Walz <arw...@vt.edu>
Sent: Wednesday, October 26, 2022 10:44 AM

To: Elizabeth Encarnacion <Elizabeth....@chaffey.edu>
Cc: cccoer-...@googlegroups.com <cccoer-...@googlegroups.com>

Subject: Re: Fair Use for Copyrighted Music in Music courses

 

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[Jonathan Poritz]

All of these cautions about fair use are quite ... fair ... but I once heard someone say that fair use is like a muscle: if you don't exercise it, it will atrophy.  (I think that quote is from a presentation about the wonderful Code of Best Practices in Fair Use for Open Educational Resources ... so: from someone who really knows from fair use!)

Three tiny things to add:

1) Campus attorneys are notoriously risk-averse.  I would regularly push the attorney on my former campus way beyond her comfort zone ... I think everyone grew and benefitted by the experience!

2) The openverse site which I mainly use to find openly licensed images quickly and safely also has (openly licensed) audio clips!  Check it out!

3) Some of the videos on YouTube have Creative Commons licenses, so their use could still fall within the realm of Open.

best,

Jonathan

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[Paige Mann]

Hi Liz,

Like Jonathan Poritz, I don't see any reason why we can't exercise our fair use protections proactively. Kyle Courtney who's a lawyer, librarian, copyright advisor at Harvard, and creator of the Copyright First Responders program that Anita mentioned, encourages CPRs to practice fair use as a right, protected under federal law. Additionally he explained that since laws require regular interpretation and reinterpretation, judges look to see how the people are commonly practicing their interpretations of laws. As a result, if educators are overly cautious, we set a kind of practitioner precedent and end up shooting ourselves, teaching and learning in the foot. There are perhaps parallels here when we think of the ways we all benefit because hip hop musicians pushed musical boundaries.

Off my soapbox, these may be useful resources to look at:

• U of Washington's Educational Uses of Music
• The Society for Cinema and Media Studies’ Statement of Best Practices for Fair Use in Teaching for Film and Media Educators
• Center for Media and Social Impact's Code of Best Practices in Fair Use for Online Video
• The Music Library Association's Statement on the Copyright Law and Fair Use in Music
• Stanford Library's Summaries of Fair Use Cases

(A huge shoutout for my friend and colleague Shana Higgins at Cal State San Bernardino who pulled most of these resources together a while back.)

From a few towns away,

Paige

Paige Mann

Armacost Library, Interim Co-Director and Scholarly Communications Librarian

University of Redlands