Hi Folks,
Very insightful responses, including what I have been told was the
'definitive' answer by Carol the resident copyright expert.
>You are correct about the recording of a student musical
performance. See everything you wanted to know about music copyright
>on the Music Library Association's website.
Assuming that the music performed and recorded is protected by
copyright (which may or may not be the case) you are entitled to only
ONE copy. So making multiple copies for the students wouldn't fit
that ONE copy model.
Remember, I'm an academic, not an attorney, so verify anything I tell
you with your district's counsel.
Carol Simpson, Ed.D.
Assoc. Professor (mod. svc.)
School of Library & Information Sciences
University of North Texas
I left names off the rest of the responses since I didn't say I was
posting a HIT.
>I would say that you can NOT make any other use of the tape than
teaching purposes. In other words, the band teacher can show >the
tape to the band in order to point out ways of improving the
performance. It doesn't really matter whether you taped it on >school
equipment or whether a neighbor taped it for you.
>The band concert was the public performance that you bought rights
for, not the taping. Carol Simpson would probably have a >better
answer for you.
>We don't do this at our school because it is impossible to get
>permission for each child. Some parents don't want their child's photo
>out there for any reason.
>I'm not a lawyer, but I have tried to research this a bit. My
admittedly limited understanding of the issue is this:
--if the stated purpose of giving the recording to students is to
help them evaluate their own performance, then this might be covered
by fair-use guidelines.
--rather than charging for the DVDs, it may be wiser to find one
donor (i.e. PTA or a band-parent) who is willing to cover the cost of
materials so you can't be accused of 'selling' the DVDs.
--if you are selling the recordings, you ought to pay "mechanical
royalties," which are typically only about 10 cents per copy per
song--though the paperwork looks like it could become a major nightmare.
--the copyright laws for band and orchestra scores can be more
complicated than for other types of music because--when royalties do
apply--they are typically paid to both the composer AND the arranger.
>I'm pretty sure the answer is no, unless you also bought filming
rights. I am basing this answer purely on my >experience with my
daughter and the local children's theater company where she performs
(no professionals). >They usually just buy performance rights to the
plays, which means they can perform the play some number of >times
but can not audio or video record the performance. However, when
affordable, they also buy the video >taping rights, which allows them
to tape the performance and make DVDs for the kids in the
performance. >But this is a separately negotiated part of the
performance rights. You would have to check the contract. My >guess
is that the video taping rights aren't going to be that expensive for
your typical band music, so you might >want to just see if you can
buy them after the fact. I do know that the broadway caliber plays
(even the >student versions of Les Mis, West Side Story, Sound of
Music, Joseph, etc.) have ridiculously expensive or >completely non-
existent video taping rights, but some musicals that are lesser known
or based on stories in the >public domain (Cinderella, for example),
are affordable with regard to video taping rights.
>According to Copyright for Schools, by Carol Simpson, 2005,
Linworth Publishing, p. 99, you probably aren't allowed to do this
>you unless you also purchased rights to distribute the production.
(This is a great book to have on hand if you don't have a newer
>copyright reference book available. It is filled with school-
related hypotheticals with no-nonsense answers.)
>The question posed in the book is this one:
>Q: Our high school recently staged a musical and legitimately
purchased the production rights for this event. A parent >videotaped
the performance and now would like to make copies of the videotape to
sell to parents of cast members at exactly the >cost of making the
copies. These tapes would be used only for the enjoyment of the
students' families. Will this violate copyright >law?
>A: Unless the school (or the parent) also purchased rights to
distribute the production, this use would likely be a violation of
>copyright. The law doesn't address this specific situation but it
does address performances of music. A school may make a >single tape
of a musical performance, but that copy can be used only in class to
critique the performance.
>I hate copyright laws!
You are correct, you may make a single copy of recordings of
performances by students, but it may only be used for evaluation or
rehearsal, or for the purpose of creating aural exercises or
examinations. Although dramatic performances are different from
concerts, I think your specific question is addressed on p. 99 of
Copyright for Schools:
Q: Our high school recently staged a musical and legitimately
purchased the production rights for this event. A parent videotaped
the performance and would now like to make copies of the video to
sell to parents of cast members at exactly the cost of making hte
copies. These tapes would be used only for the enjoyment of the
students' families. Will this violate copyright law?
A: Unless the school (or the parent) also purchased rights to
distribute the production, this use would likely be a violation of
copyright. The law doesn't address this specific situation, but it
does address performances of music. A school may make a single tape
of a musical performance, but that copy can be used only in class to
critique the performance.
Therefore, I still think that it would be a violation of copyright
for you to make and distribute copies of your archival copy.
First of all, I am not sure what you mean by "as I understand it,
that copy is archival for school purposes and is allowed under
copyright." I am aware of no "archival for school purposes" exemption,
except in the case of computer software. In fact, Carol Mann Simpson's
Copyright for Schools specifically discusses this on page 88. She
states, "Since 1976 it has been legal to make backup copies of computer
diskettes. There is not now and never has been permission to make
backup copies of vidoes, audiocassettes, phonograph records, or
laserdiscs." Your taping of the concert is not archival; it is a
videotaping of a public performance.
My previous clarification e-mail explained this. The word 'archival'
was incorrect, but not the idea behind it. One educational copy is
allowed for purposes of students reviewing their performance but it
must be used for face-to-face instruction (again, see http://
www.menc.org/information/copyright/copyr.html)
Secondly, her book states, "The educational fair use exemptions
don't apply to public performances..." (p 86). So, although you might
have obtained performance rights, you in all likelihood did NOT obtain
the rights to even videotape, let alone reproduce that performance.
THERE IS A SCHOOL CONCERT EXEMPTION IN THE FAIR USE LAWS
Check out http://www.menc.org/information/copyright/copyr.html
What you need to do is look at the contract your director signed with
the company that provided the music. I know in the case of our school
plays, the contract specifically states in huge boldfaced letters that
NO videotaping for ANY purposes is allowed. At all. For ANY reason.
None. Nil. Don't even THINK about it. Not by parents, not by school
personnel, not by the teacher, NOBODY.
Most band music does not require a signed contract for performance.
That's pretty much unique to dramatic(schools plays: musical or not)
productions
So unfair as it might seem to you, it is probably illegal, unless
your contract gives specific permission. And the concept of "not making
any money" has absolutely NOTHING to do with whether it's legal or not.
Actually, the exception for school concerts specifies that you can't
charge admission or that if you do charge admission it must be for
educational use only. (according to the above MENC website) That's
where I got the idea that not making money on it might be the litmus
test. Apparently, it only applies to the concert, not a recording of
the concert.
First the courts determine whether the law was broken or not, how many
times, and assess damages. THEN, they look at whether any money was
made, and raise the damages to negate any possible profit. Each copy
you make would be a violation, invoking separate punitive damages.
After that +/- $100,000 was levied, they'd tack on $3 to cover the
profit you made.
So, the long and short of it is that that I cannot legally duplicate
the performance recording for the students without negotiating some
recording rights with copyright holders who may or may not grant it.
At this late stage, not worth the hoops for the few kids who wanted
the recording.
Lizanell Boman
Library Media Specialist
lboman@north-staracademy.com
North Star Academy
Bluffdale, UT
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