Mother May I - Do I Have Permission?

Consider these two scenarios.  In the first, you are dance faculty and planning a recital where your students will perform.  You have scheduled the college’s performing arts center for the event.  Students will perform one of the dance presentations to Tony Bennett’s “I Left My Heart in San Francisco.”  You intend to charge a nominal fee to the parents and other adoring public that will come to see the performance, and will use those monies for a scholarship fund for dance students.  You will also videotape the performance for your archives. 

In scenario two, you are movie arts faculty.  As an assignment, the students in your class are writing, editing, filming and producing a short film.  The actions in the film will be enhanced by the music of U2’s “With or Without Me.”  You intend to submit the film to a national film festival (Cannes, maybe!) and hope that the film may gain distribution in some commercial theatres.

Now that your creative side is done creating, it needs to move out of the way for a moment so that your “I need to be a lawyer” side can take over.  Why?  Because each of those two scenarios raises an array of copyright issues that you must think about and resolve before you take any further steps.

Let’s focus, for purposes of this article, on the music you have selected.  The first question that you need to consider is “Does the District have any licenses that provide permission to use the music as planned in these projects?”  The answer is no.

In fact, the District only has licenses with the writers of musical compositions and their publishers, and those licenses are limited.  They cover the public performance by students of the composition; they do not authorize use of the composition for dramatic performances, which includes a dance recital. 

So, the licenses would not give you permission to use either “I Left My Heart in San Francisco” or “With or Without You” because students aren’t performing them.  There is a limited exception in the law for performance of a composition in a nondramatic fashion where the purpose isn’t commercial and income is used exclusively for educational purposes.  But that won’t apply to use of the composition in a dramatic way, that is, to accompany dancers at a recital.

What’s next?  You need to get permission and you’ll need to get more than one, in each case.  That’s because the writers of the songs or music and their publishers are only one component of network of copyrighted materials involved in your project.  The other copyright owners are the recording studios and the performers they represent, and they own the actual performance of the composition.

If you access the website of the American Society of Composers, Authors and Publishers (www.ascap.com), you see that ASCAP represents the writers and publishers of both songs.  You would need to contact them, or other publisher organizations, and describe what you are doing.  In both scenarios, you are using the music in a synchronized way with something visually (that is, other than simply as background), so you’d probably need what the industry calls a synchronization license.

You would then need to contact the producers and performers of the songs.  You may identify them from the jacket of the CD on which the songs have been recorded.  U2, although not an American rock group, is represented by Island Records, listed as a member of the Recording Industry Association of America (www.riaa.com).  Tony Bennett’s label, Columbia Records, is also listed as a member.  Again, you will probably need a synchronization license.  In the case of the film, its distribution to theatres or other venues where people are charged to see it would probably require that a theatrical license also be in place.

If this is daunting, you could try to perform a “fair use” analysis to determine whether your use of the music falls within that exception to the requirement to obtain permission from the copyright owners.  Fair use guidelines are at:
http://www.maricopa.edu/legal/ip/guidelines.htm.

But that is risky and, quite frankly, not likely to get you off the hook in these cases.

The music issues are only a portion of the copyright matters that the scenarios raise.  For instance, is the making of a single archival video OK?  (The answer is yes.)  Who is the choreographer of the dances in the recital, and do you have their permission to use their choreography?  Have you obtained the proper permission and authorization from, for instance, the student-author of the script for the movie that you and your students are making, since the student is the owner of that work and the work may also be an educational record under the Family Rights and Privacy Act?

The moral of the story is to get permission.  Otherwise, you are placing the District in peril of being slapped with a copyright violation claim, and paying significant statutory and other damages as a result.

Published in the Summer 2007 Edition of In Brief