Copyright is a form of protection afforded under the U.S. Constitution and federal law to “original works of authorship” that are fixed in a tangible form of expression (e.g., written down, audio recorded, videotaped, etc.), including literary, dramatic, musical, artistic, pictorial, and other intellectual works. This basically covers anything that is creative and can be fixed in some manner, regardless of whether the works are published or unpublished.
A copyright gives the owner the exclusive right to make, reproduce, and distribute copies of the work, prepare derivative works, perform the work publicly (e.g., plays, films, music, etc.), and display the work publicly such as on the internet, television, etc. “Derivative works” are works that are based on the original work, such as translations, musical arrangements, movies based on books or plays, and the like.
Almost any original work that is creative and can be fixed into a tangible form can be copyrighted. Some common types of works protected under copyright law include:
Under U.S. copyright law, a copyrightable work is protected from the moment the work is created and fixed in a tangible form. No registration or publication is required. However, there are important benefits to registering a copyright. These include giving others notice of the copyright and making it easier to license the work, collect royalties, and enforce ownership rights. Copyright registration is also required to bring a lawsuit for copyright infringement and obtain certain kinds of damages or fees in court. A copyright typically lasts for the life of the author/creator plus an additional 70 years for anything created after 1978. For an anonymous work or work for hire, the copyright lasts for 95 years from the date of first publication or 120 years from the date of creation, whichever expires first. For works published before 1978, the term may vary depending on the specific circumstances.
Copyright law only grants the owner of a creative work certain exclusive rights for activities within the United States. A creator who wishes to obtain copyright protection in other countries must file for protection and/or meet the requirements for such protection in any other countries in which protection is sought.
Copyright infringement is a violation of any of the exclusive rights of copyright including use of the whole or part of a work without permission, use of a work beyond the scope of a license, and adapting or modifying a work without permission, such as changing the medium (e.g., print to digital). The penalties for infringing a copyright can include injunctive relief, civil damages, and statutory damages fines up to $150,000 for each act of infringement.
The rights provided to copyright holders under the Copyright Act are exclusive, meaning they give the holder the exclusive right to make, reproduce, and distribute copies of the work, prepare derivative works, as well as perform or display the work publicly. However, there are some exceptions under Copyright law that allow works to be used without violating these exclusive rights. These exceptions include, among others:
Additional exceptions not discussed here include the statutory exception for libraries and archives as well as where necessary to ensure access for those with disabilities. Many works have also been dedicated to the “public domain,” meaning that they may be used without violating a copyright holder’s rights. Campuses should consult with University Counsel to determine whether a copyright exception applies.
The Copyright Act includes a face-to-face teaching exemption, which allows instructors to
display copyrighted works (e.g., films, writings, etc.) in class without violating the copyright holder’s rights. The exemption does not include the right to make or distribute copies of, or make derivative works based on, the copyrighted works or the right to use the works outside of the classroom setting.
Face-to-Face Teaching Requirements To qualify for the face-to-face teaching exemption, the following must apply:
If these requirements are met, then copyrighted works may be displayed or performed in the classroom. This means, for example, that students and instructors can watch movies, perform scenes from a play, or display photographs of artistic works within the classroom for educational purposes without first obtaining permission or a license. This exemption does not apply to other uses of the copyrighted works (e.g., copying or distribution) or to uses outside of the classroom setting. In such cases, other exceptions, such as the TEACH Act or Fair Use, may apply depending on the specific facts and circumstances.
The Technology, Education, and Copyright Harmonization (“TEACH”) Act of 2002 was enacted as a way to support online education and balance the needs of distance learning with the rights of copyright holders. The TEACH Act made copyright laws and requirements for distance learning similar to those for face-to-face teaching, though there are still significant differences. The TEACH Act permits educators and students to transmit performances and displays of copyrighted works as part of a distance learning course if the requirements of the TEACH Act are met. Any distance learning activities outside the protections of the TEACH Act would need to have permission or qualify for another exemption (e.g., public domain, fair use, etc.).
TEACH Act Requirements
The TEACH Act requires that academic institutions meet a variety of requirements in order for its exemptions to apply. These requirements ensure that the copyrighted works are being used in a permitted manner and that the academic institution has sufficient policies and practices in place for copyright compliance and education. These requirements include, among others:
Materials permitted to be used under the TEACH Act include:
The “fair use” doctrine allows limited use of copyrighted material without requiring permission from the owner and protects certain uses from copyright infringement actions. Examples of fair use include: use of a work for criticism, comment, news reporting, teaching, scholarship, or research. However, the fair use inquiry is holistic and there are no bright-line rules. Rather, courts use a case-by-case analysis and look to the purpose and character of the use (e.g., commercial vs. non-profit), nature of the copyrighted work, amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of use upon the potential market for or value of the copyrighted work. All four factors must be analyzed in making a fair use determination and courts differ on the relative weight given to each factor. Consequently, the scope of fair use is an unclear and inconsistent area of copyright law. Campuses should consult with University Counsel before making a determination that the “fair use” doctrine would apply to a proposed use of copyrighted material.
A public domain work is a creative work that is not protected by copyright and that may be used without violating copyright law. Individuals are able to use works within the public domain without first obtaining permission or a license to use the work.
Works may fall within the public domain in any of the following ways:
There are many sources of public domain work. Below is a list of some potential sources, though users should confirm that a work is dedicated to the public domain before using.
The performance or playing of copyrighted music on campus typically requires that the campus have licenses with Performing Rights Organizations (“PROs”) such as ASCAP, BMI, SESAC, SoundExchange, and GMR. These PROs distribute money derived from the licensing fees to the songwriters, musicians, and publishers who copyrighted the works. If a license exists between a particular PRO and the campus, any of that PRO’s collection of songs can be played on campus generally (i.e., at concerts, dances, mixers or student clubs; in coffee houses, pubs, and student unions; in bookstores or cafeterias; in exercise classes; at athletic and other events on campus; etc.).
Negotiating a Standard Music License Agreement
Campuses must decide with which of the PROs to enter licensing agreements. The PROs maintain lists of the songs in their repertories on their websites. Therefore, before any public playing of a song – live or recorded – on campus, it would be prudent to check if the work is listed among the works controlled by a PRO with which the campus has already contracted. ASCAP and BMI reportedly control over 70% of the music in the United States. PROs say they monitor, from time-to-time, public venues to ascertain whether their music is being played without a license, and have been known to make a demand for significant monetary damages and threaten legal action for copyright violations in such situations.
Some of the PROs have standard university license agreements that they have negotiated with the National Association of College and University Business Officers or the Office of General Counsel. In other instances, the campus will need to negotiate the content and cost of a licensing agreement. The rates charged usually are based on how many full-time equivalent students are at a campus.
Supplementing with Other Music Licenses Based on Campus Activities
Depending on the nature of campus activities, a basic PRO performance rights license agreement might need to be supplemented with other licenses. For instance, the campus may need to add a license for grand rights, which would grant permission to perform music in staged works, such as plays, musicals, or operas. Sometimes grand rights can be negotiated for certain works by contacting organizations such as the Tams-Witmark Music Library, Inc., the Rodgers & Hammerstein Organization, Music Theatre International, and Samuel French, Inc. Otherwise, it may be necessary to reach out to the individual copyright owners, publishers, or writers to negotiate the fees for the right to perform their works on stage.
If a campus wishes to stream copyrighted music via certain digital transmissions, including satellite radio, non-interactive internet radio, cable TV music channels, and similar platforms, it will need a streaming license. SoundExchange usually is responsible for collecting and distributing these royalties on behalf of recording artists, master rights owners, and independent artists.
If a campus wants to incorporate copyrighted music into a visual or multimedia product, it will need to acquire a synchronization license. This scenario most often arises when creating commercials, marketing materials, or YouTube videos for the university or other organizations within it. This type of license is usually obtained from publishing companies directly. In a limited number of cases involving popular musical works that are commonly used for such purposes, these licenses may be available from Stockmusic.net, Getty Images, GreenLight Music, and The Music Bed Company.
If a campus wants to reproduce and distribute copyrighted songs on CDs, records, tapes, ringtones, permanent digital downloads, or interactive streams, it will need a mechanical license. These usually can be acquired by contacting the Harry Fox Agency, which is owned by SESAC.
Limited Exceptions to License Requirement
There are four main exceptions when a campus does not need to have a license agreement:
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