I want to... Play live music—as a soloist or as part of an ensemble—that fulfills an educational purpose
September 13, 2013
If you would like to play live music-as a soloist or as part of an ensemble-that fulfills an educational purpose on your campus, please keep the following things in mind.
Possibly none, but only if use qualifies as a fair use or fits within another exemption under the law.
Under Section 110 of the Copyright Act, no permission is needed to play (or in legal parlance, "perform") copyrighted music as part of face-to-face teaching activities of a nonprofit institution in a classroom or similar place devoted to instruction. In some cases, an exemption also applies for performing music (and other copyrighted works) as part of a "transmission" of a live classroom session. That exemption is limited, however, and requires careful analysis of the facts and circumstances involved.
Even where an exemption does not apply under Section 110 of the Copyright Act, it may be possible to proceed under the fair use provisions of the Copyright Act. Found in §107 of the Act, fair use involves the use of a copyrighted work for such purposes as teaching, research, reporting, or criticism, and outlines four factors that should be used in determining whether a use falls under this doctrine.
The § 107 factors are:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for or value of the copyrighted work.
Determining whether or not a particular use of music is a fair use can be difficult. As the U.S. Copyright Office has explained: "The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission."
A number of colleges and universities have established online tools to aid in making a fair use analysis. We have listed some of those sites below:
- Stanford Copyright and Fair Use Center
- Columbia University Copyright Advisor Office
- University of Maryland University College Library Guidelines
Consult resources, including university counsel as appropriate, to determine whether performance of a musical work adheres to the fair use provisions or the exemptions offered under Section 110 of the Copyright Act.
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