Copyright Guidelines

Audio-Visual and Performances

Music

Copyrights exist in tangible forms of music, such as recorded music, sheet music and musical performances. For a discussion of musical performance, see the discussion of performances below. The purchase of a tangible form of music, such as a compact disc, does not provide the purchaser with rights to reproduce the work or to use the work in another medium, such as on a web site. MCCCD prohibits the use of its resources to electronically copy or "share" copyrighted music over the Internet.

What is commonly thought of as a single, musical work - for example, a song on a CD - actually contains three separate copyrightable works: the sound recording, musical score and lyrics. You must clear rights to each copyrightable work before using it.

Certain uses of music, however, may constitute fair use. The following Congressional Guidelines, which are reprinted here, state only the minimum standards for fair use. However, other uses may constitute fair use and reference should only be made to the detailed discussion in the fair use section of the Policy.

Guidelines for Educational Uses of Music

Permissible Uses

1. Emergency copying to replace purchased copies which, for any reason, are not available for an imminent performance, provided purchased replacement copies shall be substituted in due course.
2. For academic purposes other than performance, single or multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section, movement or aria, but in no case more than 10 percent of the whole work. The number of copies shall not exceed one copy per pupil.
3. Printed copies which have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist.
4. A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher.
5. A single copy of a sound recording (such as a tape, disc, or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.)

Prohibitions

1. Copying to create or replace or substitute for anthologies, compilations or collective works.
2. Copying of or from works intended to be "consumable" in the course of study or of teaching such as workbooks, exercises, standardized tests and answer sheets and like material.
3. Copying for the purpose of performance, except as in A(1) above.
4. Copying for the purpose of substituting for the purchase of music, except as in A(1) and A(2) above.
5. Copying without inclusion of the copyright notice which appears on the printed copy.

Film

Films, including purchased or rented videos and DVDs, may not be copied or altered without the copyright owner's permission. At the time of purchase or rental, the copyright owner may specify the types of authorized uses. In most cases, purchased or rented films may not be shown outside of the home, as evidenced by labeling on the films and/or warnings displayed prior to the film.

Copyright law, however, allows educational use of a film in the course of "face-to-face" instruction, provided that the copy of the film used was lawfully made. Specifically, the Copyright Act states:

[T]he following are not infringements of copyright:

(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images is given by means of a copy that was not lawfully made under this title and that the person responsible for the performance knew or had reason to believe was not lawfully made.
17 U.S.C. § 110

Television

The live broadcast of cable or television programming in an educational setting does not violate copyright law. However, rebroadcasts of programming in an educational setting must comply with the fair use doctrine. The following Congressional Guidelines provide guidance for the use of television programming for educational purposes and should be followed by faculty and students at MCCCD:

Guidelines for Off-Air Recordings of Broadcast Programming for Educational Purposes

In March 1979, Congressman Robert Kastenmeier, Chairman of the House Subcommittee on Courts, Civil Liberties and Administration of Justice, appointed a Negotiating Committee consisting of representatives of educational organizations, copyright proprietors, and creative guilds and unions. The following guidelines reflect the Negotiating Committee's consensus as to the application of "fair use" to the recording, retention, and use of television broadcast programs for educational purposes. They specify periods of retention and use of such off-air recordings in classrooms and similar places devoted to instruction and for homebound instruction. The purpose of establishing these guidelines is to provide standards for both owners and users of copyrighted television programs.

1. The guidelines were developed to apply only to off-air recording by nonprofit educational institutions.
2. A broadcast program may be recorded off-air simultaneously with broadcast transmission (including simultaneous cable retransmission) and retained by a nonprofit educational institution for a period not to exceed the first forty-five (45) consecutive calendar days after date of recording. Upon conclusion of such retention period, all off-air recordings must be erased or destroyed immediately. "Broadcast programs" are television programs transmitted by television stations for reception by the general public without charge.
3. Off-air recordings may be used once by individual teachers in the course of relevant teaching activities, and repeated once only when instructional reinforcement is necessary, in classrooms and similar places devoted to instruction within a single building, cluster, or campus, as well as in the homes of students receiving formalized home instruction, during the first ten (10) consecutive school days in the forty-five (45) calendar day retention period. "School days" are school session days-not counting weekends, holidays, vacations, examination periods, and other scheduled interruptions-within the forty-five (45) calendar day retention period.
4. Off-air recordings may be made only at the request of and used by individual teachers, and may not be regularly recorded in anticipation of requests. No broadcast program may be recorded off-air more than once at the request of the same teacher, regardless of the number of times the program may be broadcast.
5. A limited number of copies may be reproduced from each off-air recording to meet the legitimate needs of teachers under these guidelines. Each such additional copy shall be subject to all provisions governing the original recording.
6. After the first ten (10) consecutive schools days, off-air recordings may be used up to the end of the forty-five (45) calendar day retention period only for teacher evaluation purposes. i.e., to determine whether or not to include the broadcast program in the teaching curriculum, and may not be used in the recording institution for student exhibition or any other non-evaluation purpose without authorization.
7. Off-air recordings need not be used in their entirety, but the recorded programs may not be altered from their original content. Off-air recordings may not be physically or electronically combined or merged to constitute teaching anthologies or compilations.
8. All copies of off-air recordings must include the copyright notice on the broadcast program as recorded.
9. Educational institutions are expected to establish appropriate control procedures to maintain the integrity of these guidelines.

Performances

The public performance or display by faculty or students of dramatic works, such as plays and musicals, and non-dramatic works, such as musical compositions, does not constitute copyright infringement if the performance:

• occurs as part of face-to-face teaching activities; and
• takes place in the "classroom or similar place devoted to instruction."
  17 U.S.C. § 110(1).

In the case of an audiovisual work, in addition to the two criteria above, the display or performance must be given by means of a copy that was lawfully made. Id.

Public performances of copyrighted works outside of the classroom may result in copyright infringement.

Performances of copyrighted works, such as music, dramatic literary works, and non-dramatic literary work at a college should be considered public performances under the Copyright Act and you should seek permission if the work being performed is copyrighted.

A non-dramatic literary or musical work may also be performed without infringement if:

• the performance is not broadcast to the public
• there is no admission charge for the performance
• the performers, promoters and organizers are not compensated
• the proceeds, after deducting the reasonable costs of production, are used for educational, religious, or charitable purposes; and
• the copyright owner does not object in writing within seven days of the performance.
  17 U.S.C. §110(4).

In addition, non-dramatic literary and musical works may be transmitted to classrooms or to those with disabilities who are unable to be present in the classroom so long as the transmission is:

• "a regular part of the systematic instructional activities" of the educational institution; and
• the "performance or display is directly related and of material assistance to the teaching content of the transmission."
  17 U.S.C. §110(2)

Artwork

The use of artwork involves not only works of fine art such as paintings, sculptures and photographs, but also graphics, book illustrations, animation, comic strips and even clip art. The Internet has made accessing art much easier, but do not assume that just because something is easy to copy that it is legal to copy.

It is important to know that reproductions of works of art (e.g. a photograph of a painting) can also be protected by copyright - though only the original elements the reproduction adds, such as angle, lighting, etc. are protectible. If you are copying a reproduction of the original work, you may need to clear rights for both the original and the reproduction.

Works of Fine Art

Remember that just because a work is old does not mean the work is no longer copyrighted. The owners of works of fine art will often require you to follow strict copying guidelines to ensure the artistic qualities of the work and may require you to purchase and use their copy of the work on CD-ROM or other medium, which they will often require you to return. Modifications may be prohibited. It is also important to remember the copyright owner has the exclusive right to create derivative works. If you use a copyrighted work to create a new, or derivative work (such as a photograph of a painting), you may be infringing the owner's copyrights.

Copyright owners often require you to include a credit line, not only providing the copyright notice and information about the artist, but also including information about where the original work is held (e.g. the name of a museum). Further, the owner is also likely to be particularly interested in your intended use. They are much more likely to agree to educational uses than commercial uses and will likely carefully guard against the work being reproduced on merchandise such as posters, greeting cards and coffee mugs without first entering an express written license.

The Copyright Act also grants artists of qualifying works of fine art special "moral" rights of integrity and attribution and in some cases, rights against destruction of the work if it is of recognized stature.

Illustrations

Illustrations in books and magazines are typically separately created and copyrighted. Do not assume that because the text of a book is in the public domain, the illustrations are as well. For example, a Shakespeare play may be in the public domain, but original illustrations created in 1982 for a reprint of the play would still have copyright protection.

Graphics

Clip art is an industry term used to designate compilations of artwork and graphics intended for others to use and copy. Some of the art is in the public domain. Other pieces are specially created for this purpose and may be copyrighted. If you are using works from a clip art compilation, be sure you know what type of work you are using and be careful to read and follow the company's terms of use.

If you are obtaining "free" clip art off of the Internet, be sure to abide by the terms of use, if any. Many sites that advertise "free" clip art place significant restrictions on the use of those images. For example, some clip art sites prohibit users from downloading the images, altering the images, or using them for commercial purposes. Others limit the number of images a user may download or provide license forms for anything more than a minimal use. Look for the "Terms of Use" or "Copyright and Use Information" pages on the site you are visiting and review those terms before using the site's clip art.

Rights of Publicity

Does the art contain images of identifiable people? If so, you must also determine whether you must get permission from the people appearing in the image. Every person has a right of publicity - the right to control the commercial exploitation of their image. A person's image can include their physical appearance, their voice or even a character they have portrayed in the media. Sometimes a copyright owner may grant you the right to reproduce an image, but expressly state that you must separately clear rights of publicity with anyone pictured.