Karen recently got the chance to visit with the ESU 10 New Teachers’
Academy and one of the topics she addressed was the need for educators to
be aware of copyright law. In brief, she emphasized that copyright laws
protect any original, tangible work and that the educational “fair use”
doctrine is not a license for educators to use copyrighted material at will. In
response to that presentation, many of the educators (both new teachers
and their mentors) asked: Is it a fair use to stream music and playlists
from services like Pandora, Spotify or Grooveshark as background
music in the public K-12 classroom? The short answer is: probably
not. (Sorry!)
Pandora and Grooveshark do not distinguish between non-profit and
business uses. Therefore, playing these services as background music in a
non-instructional classroom use would most likely be deemed a public
performance requiring licensing. It may seem unlikely the copyright police
are going to come storming in and arrest teachers for playing their Spotify
playlists. However, one of Karen’s first cases (many, many years ago) was a
copyright infringement action against a small, rural Nebraska hospital for
playing the local radio station over their sound system.
The copyright law is found in Title 17 of the United States Code. Section
110(2)(B) provides that teachers can use copyrighted movies, music and the
like for free if "the performance or display is directly related and of material
assistance to the teaching content of the transmission" -- that is, you are
teaching something about the media being presented. Good examples of
this exception would be using snippets of copyrighted songs to discuss
composition styles in a high school music class, or Bobby’s class
presentation in high school where he (very successfully) argued that Vanilla
Ice totally ripped off Queen and David Bowie’s “Under Pressure” for the intro
to “Ice, Ice, Baby.”
We are aware that there are a number of studies which show that
background music has beneficial effects on general education and cognition.
However, we do not think this generalized benefit meets the “directly
related” test in section 110. Unless you are evaluating the eccentricities of
Lady Gaga, we doubt you can succeed in arguing that playing Pandora in the
classroom qualifies as “fair use.” The same problems exist if you’re blasting
“warm up” music before basketball games or putting music in a graduation
slideshow—two very common questions we receive on this topic.
We certainly don’t enjoy our role as the “fun killers” for public education.
However, we also need to be clear with educators about their potential legal
liability for copyright violations. Over the past several years numerous
schools have been challenged for their unauthorized use of copyrighted
materials. In the vast majority of those cases, the school ended up paying
some amount to the copyright holder to resolve the dispute.
If you have questions about copyright law in general or the specific of the
“fair use” doctrine, you should consult with your school district’s attorney or
call Karen, Steve, or Bobby.