Using Copyrighted Music at MnSCU Colleges and

Using Copyrighted Music
at MnSCU Colleges and Universities
May 31, 2013
CAO/Deans Conference
Gary B Hunter
System Director for Intellectual
Property
Sarah McGee
Assistant General Counsel
Minnesota State Colleges and Universities
The Minnesota State Colleges and Universities system is an Equal Opportunity employer and educator.
1
Overview
 Educational use of copyrighted music on campus
 Faculty use in class
 Student use in class
 Getting permission for other uses
 Copyright clearance
 Performance licenses
 Synchronization licenses
 Other licenses
 Options to avoid copyrighted music
 Special situations
2
Uses of Copyrighted Music
 Teaching activities
 Face-to-face
 Hybrid/online courses
 Student home work assignments and projects
 Promotional videos
 College/University/Department
 Athletics/Clubs/Student Groups
 Played on college and university radio stations
 Playing pre-recorded music during athletic events or in open
areas on-campus (e.g., student commons)
3
Uses of Copyrighted Music (continued)
 Live musical performances on campus
 Musicals
 Dance recitals
 Choral, a cappella, rock, jazz, and other concerts
 Recording music (bands, choirs, etc.)
 To be sold
 Or posted on line
 Lip dub videos, song parodies, internet memes
 Live-streaming events with background music
4
Faculty Member’s Use of Copyrighted
Music
Copyright Act § 110(1): Face-to-Face Teaching
 Physical/Tangible Classroom
 Copyright law allows any music lawfully acquired.
 “Used in the classroom” means playing music (CD or digital file) with
electronic equipment located in the classroom.
 Playing sheet music in the classroom or a similar location devoted to
instruction.
 The entire amount of music may be used.
 Licenses May Restrict Use
 E.g., Pandora, Spotify, iTunes, etc.
5
Faculty Member’s Use of Copyrighted
Music (continued)
Copyright Act § 110(2): Hybrid/Online Teaching (TEACH Act)
 Online or Hybrid Courses (D2L implications)
 Copyright law allows any music lawfully made and acquired.
 One digital copy is permitted to be made.
 EXCEPTION: Cannot be music that is produced or marketed primarily
for instructional activities transmitted via digital networks.
 Entire performances of nondramatic literary and musical works
(poems, songs, music, etc.).
 Reasonable and limited portions of a dramatic musical or audiovisual
works (musicals, movies, music videos, etc.).
 Fair Use may allow “more than” a reasonable and limited
portion of dramatic works
6
Student’s Use of Copyrighted Music
for Non-Profit, Educational Purposes
 Students may:
 Use the entire copyrighted song/music in their homework
assignments and projects produced for non-profit educational
purposes.
 Have their assignments viewed or heard by faculty members and
other classmates.
 Students may not:
 Post their homework assignments or projects on a public website
unless the copyright to the song/music has been cleared.
 Faculty members are encourage to inform students of this copyright
issue.
7
Procedure 3.27.1: Copyright Clearance
 “The act of ensuring a proposed use of another’s materials
complies with copyright law”
 The user of the material is responsible for clearing copyright
 What to do:
 Use materials not protected by copyright or your own materials.
 Get copyright owner’ permission (e.g. letter, subscription, license).
 http://www.copyright.mnscu.edu/faq/faqs_permission.html
 Perform a Fair Use Analysis using the Fair Use Checklist.
 Use the TEACH Act checklist.
8
Performance Licenses
 Music Licensing Companies
 BMI = Broadcast Music Inc.
http://www.bmi.com/
 ASCAP = American Society of Composers, Authors and Publishers
http://www.ascap.com/index.aspx
 SESAC = Society of European Stage Authors & Composers
http://www.sesac.com/
 Dramatic performances
 Dramatic musical performances such as musical comedies, operas,
plays with music, revues, ballets, etc. in which there is a live human
representation or interpretation involved are not covered.
 Derivative works are not covered (e.g. music video).
9
Performance Licenses (continued)
 Performance licenses typically cover:
 Educational activities on campus.
 Educational activities off-campus that are devoted to outreach or
educational activities which are “promoted by the college or
university”.
 Music played on websites owned and/or operated by the college or
university. Websites must be educational in nature or operated for
the primary purposes of promoting the college/university to current
and prospective students, faculty, staff. alumni, and the school
community.
 Performance licenses do NOT cover activities promoted by
third parties
 May also be restricted by Terms of Service.
10
Performance Licenses (continued)
 Our educational licenses cover non-dramatic musical
performances
 “Non-dramatic” means there is no live human representation or
interpretation involved when playing the music (e.g. dance).
 “Musical Performance” means the act of playing pre-recorded music or
performing music live.
 Playing prerecorded music
 Athletic events, student unions, fitness centers, fairs/festivals, socials,
orientation, graduation, classrooms, college theater groups, radio
stations, etc.
 Playing live music
 Student band performances, orchestras, symphonies, concerts of all
sorts (choral, rock, jazz, a cappella, etc.) classrooms, etc.
11
Other Types of Licenses
 Mechanical License (aka Compulsory License)
 The right to record and distribute another artist’s song (“cover”) for a
low fee (9.1¢/per song per recorded unit).
 Available after a song has been commercially distributed.
 Covers both music & lyrics, but not the sound recording.
 Master Use License
 Any time you use someone else’s recording to create your own work.
 Synchronization License
 The right to “sync” a sound recording with any audio/visual element.
 Reprint License
 Allows you to put the lyrics to a cover song in your album liner notes.
12
Using Music in Promotional Videos
 Multiple copyrights may be associated with any one song:
 The “sound recording” or “master” which is the actual recording of
the song and is most often owned by the record label.
 The “composition”, which is the underlying lyrics and melody written
by the songwriter and administered by the music publisher.
 The owner of a copyright has certain exclusive rights under
the law, including the exclusive right to reproduce, to
prepare derivative works, to distribute copies, to publicly
perform, and to publicly display the work.
 When you upload to YouTube or Vimeo, you are warranting
that you have cleared all necessary rights to the video. Can
you be sure?
13
Synchronization Licenses
 Used when you want to ‘sync’ a sound recording with any
audio/visual element (adding audio to video)
 Commonly for slideshows & music videos.
 Whether online or in a classroom.
 Also required to film a live performance of a band performing the
cover song (in addition to a Performance License, if not covered by
campus blanket license).
 Required no matter how small a portion of a song you use
 Even if you re-record or “cover” a song, you are using
someone else’s “composition”, so a license will be required
 Just because others are uploading to YouTube does not make
it legal

14
How to Get a Sync License
 Negotiate directly with the publisher (who typically negotiates
on behalf of the songwriter)
 The publisher can demand any price or deny permission
altogether
 Fees may be cost-prohibitive.
 May be less expensive for local or up-and-coming artists.
 Get license agreements in writing
 We can help.
15
How to Get Sync License (continued)
 Companies specialize in negotiating these licenses
 One New Example: Greenlight Music
 http://www.greenlightmusic.com/music-licensing/
 “Get it Now” (limited selection) or “Make an Offer” options:
 Example: Macklemore “Can’t Hold Us” – license for 1 day for use in
the middle of a student film. Suggested bid: $74 for classroom use.
 Example: Father John Misty “I’m Writing a Novel” license for entire
song, in a school auditorium up to 500 people, synchronized to video,
for up to a month. Suggested bid: $173.
 Example: Alt-J “Breezeblocks” license to use 2 minutes of song on
external-facing website for a month. Suggested bid: $938.
 Promo video or ad? Expect to pay a lot more.
16
Free Options to Avoid Licenses
 Use public domain work
 Use creative-commons licensed songs
 http://creativecommons.org/legalmusicforvideos
 http://www.jonathancoulton.com/store/downloads/
 Or other reputable free sources
 http://mobygratis.com/film-music.html
 Remember: On the internet ≠ free
17
Inexpensive Options To Avoid Licenses
 Buy songs that include the royalty-free licenses
 Vimeo Music Store: ($19.99/song)
 Song Freedom https://www.songfreedom.com/ ($34.99/song)
 http://withetiquette.com/ ($50-$200+/song)
 http://www.cuesongs.com/
 But, read the licenses for specific terms & conditions
 Need to know if your use is covered? Contact us before
purchasing
18
Special Situations
 Campus-authorized lipdubs, parodies, memes, and other
videos
 Recording CDs or DVDs for sale or other distribution
 Live-streaming events with background music
 Others?
19
Students Groups, Clubs, Teams
 Lip dub videos, song parodies, following memes like Gangnam
Style, Harlem Shake, etc.
 Rights needed?
 Implied Permission: Carly Rae Jepsen had a video posted on
her website http://www.carlyraemusic.com/ for fans to lip
dub their own version of “Call Me Maybe”.
 Parody: Using enough of the music and words where people
recognize the song, but not enough used for it to be copyright
infringement. Musical parodies tend to be humorous, but can
also be critical and satirical.
20
Recording Music on Campus
 A mechanical license needs to be obtained if a campus group
wants to release a CD with even a single cover song.
 A “sync” license is required to film a live performance of a
choir or band performing a cover song.
 Plus a public performance license, unless the campus has the
necessary blanket licenses
 You would also need a re-print license to include the lyrics to the cover
song in the album liner notes
 If the College/University is involved, contact us.
21
Live-Streaming Events with
Background Music
 Our performance licenses are silent on “streaming”.
 Graduation ceremonies, presidential inaugurations, award
ceremonies, and similar events are covered by our
performance licenses.
 Streaming these activities must occur through the college’s
and university’s website as required by the performance
licenses.
22
Questions?
23
Policies and Procedures
 Board Policy 3.26 Intellectual Property
http://www.mnscu.edu/board/policy/326.html
 Board Policy 3.27 Copyright
http://www.mnscu.edu/board/policy/327.html
 System Procedure 3.27.1 Copyright Clearance
http://www.mnscu.edu/board/procedure/327p1.html
24
Resources
 System Legal Counsel:
 Sarah McGee, Assistant General Counsel,
[email protected] (651) 201-1410
 Michelle Owen, Assistant Attorney General,
[email protected] (651) 757-1322
 System Office Resources:
 Gary Hunter, System Director for Intellectual Property,
[email protected] (651) 201-1659
 System Copyright website www.copyright.mnscu.edu
 System Intellectual Property website
www.intellectualproperty.mnscu.edu/
25
30 7th St. E., Suite 350, St. Paul, MN 55101-7804
Toll free: (800) 456-8519 | International: +1-651-5560596
For TTY communication, contact Minnesota Relay Service
at 7-1-1 or 1-800-627-3529.
The Minnesota State Colleges and Universities system is an Equal Opportunity employer and educator.
26