Project and Pre-Production Deadlines:
Is Copyright and Permissions getting in the way of educating?
What to do when THE SHOW MUST GO ON.
In the spring of 2008 I was teaching a copyright workshop at a statewide conference.
During one of our discussions about getting permissions for copyrighted materials for certain project, 90% of the workshop attendees said they would claim Fair Use even with a certain amount of legal and ethical risk. When I asked “why”, their response was that “production and project deadlines are critical and we can not let these things get in the way of educating our students.”
In response, a lady on the front row said, “I was in a similar circumstance. In spite of the deadline, I just couldn’t rest knowing that a student had brought in copyrighted music to use in the introduction of our video.” She added, “So, I had the student go and get the permissions. He made the phone calls and sent the emails to all the organizations and got the written permissions we needed.” After giving her account, she asked the other workshop attendees who opposed, “who learned more, my students or yours?”
I have to admit, it can be a tough call and with project and production deadlines looming, whether those are for a morning news show or a video yearbook, the impulse is to justify the release or publication by claiming Fair Use for Education when using music, graphics, photographs, video and other media. This is fine. I use Fair Use all the time, except for video yearbooks, morning news, podcasts, broadcasts and projects for the web. Given the public nature of these works, it’s hard to even suggest Fair Use.
“The Fair Use Guidelines are gray and subject to interpretation” is the comment I typically hear from teachers. I have also been told that these conservative practices in education regarding copyright and Fair Use are too strict, and are based on one’s own interpretation. This is incorrect.
I did not write the guidelines, but I am a member of one of the associations who endorsed the Fair Use Guidelines, so, I know the pitfalls and conditions of claiming Fair Use. (See Appendix A, ORGANIZATIONS THAT HAVE ENDORSED THESE GUIDELINES AT http://www.ccumc.org/system/files/MMFUGuides.pdf.)
These conditions according to Fair Use would allow for instructional content in a non-public environment, In the case of my video yearbook or morning news show, neither would qualify to meet the most basic criteria for Fair Use.
The most important of all facts, is that Fair use ends with a statement of indemnification that basically says that if you find yourself with a copyright claim, you are on your own.
Section 6.7 Licenses and Contracts states:
“Educators and students should determine whether specific copyrighted works, or other data or information are subject to a license or contract. Fair use and these guidelines shall not preempt or supersede licenses and contractual obligations.”
Regarding the above paragraph, I don’t think educators and students should be responsible for determining if copyrighted works are subject to a license or contract. That is way too much responsibility whenever (as the second part of the paragraph states) that your Fair Use claim will not necessarily hold up should there be a claim.
This never mattered much until we reached the digital age and student projects so easily wind up on the web. In cases where educators who thought they were properly applying Fair Use got into trouble with no recourse, they found no support from those who gave them incorrect or limited advice regarding Fair Use. Keep in mind this is coming from a person – me, who signs off on a license which gives you extreme liberties for use of content in K-12 and says basically that you are indemnified – not the other way around as stated in Fair Use.
I am not the copyright police. After all, I’m one of many who helped pioneer new technologies to challenge the major record labels – which we did legally.
Since I’m not an attorney or the copyright police, I won’t tell you what to do or give legal advice, but I will tell you what I personally would do – as a producer, as a teacher and as a parent.
In a recent case, we did a taping for a statewide cable broadcast that required media permissions at a level beyond the current permissions I held, and quite honestly, certain items did not make it into that episode.
Specifically, I had Fair Use applications to use a link to an ABC news article about a particular teacher. She had appeared on the national news broadcast after her brand and image was infringed upon by students.
Prior to the taping, I found her on FaceBook and obtained her permissions, however I have still not gotten the written permissions from ABC. Therefore, in the taping (that we just completed this past November 19th), I used the picture of the teacher and references to the article, but did not show the video footage. When I get the permissions, I can use that in a future episode.
“We don’t roll that way”
Recently, comedienne and talk show host (and newest American Idol judge) Ellen DeGeneres was sued for copyright infringement (her show – not her personally) for not obtaining the proper licenses for the music used in her “celebrity dance-off” (seen here with President Obama.)
When representatives of the recording companies asked the defendants why they had not obtained a license to use the songs, they responded by saying they “didn’t roll that way” according to the lawsuit. Whether they “roll that way” or not, they have to pay and fess up to unethical behavior (since they would not let you use their footage without permissions.)
You might be thinking at this point, “but that’s for a major television broadcast and has nothing to do with education.” If you, a student or anyone places a project or production on the web, it’s a public broadcast.
Over the last 10 years, we have seen a startling number of students who have left high school with no knowledge of media permissions, a vague understanding of copyright and incorrect information regarding Fair Use. What happens is, they enter college or the workforce bringing major lawsuits on themselves, their schools or companies because they were not properly instructed. All this in fact does affect our workforce and economy.
If you run a video or media class and vouch that you should have more leniency regarding Fair Use for your content, do know that media students above all should have a grasp on media permissions and proper clearance of copyrighted items such as music, graphics, logos, photographs and video footage. I’m a big fan of Fair Use and use it all the time – use it properly, and when it does not apply, use the practice of getting media permissions as a method of compliance and education.
Therefore, evaluating the nature of your projects based on the reach and audience should always be a consideration. Here are some items to consider; these are listed in order from the most lenient to the most strict:
Projects and productions that are contained within the four walls of the classroom have the most leniency regarding the need for permissions or copyright clearance.
Projects and productions that are contained within the four walls of the classroom but are transmitted to remote locations that are password protected with no public access have great degree of leniency as well.
Closed Circuit Television or CCTV is the use of video cameras to transmit a signal to a specific location. It differs from broadcast television because it is not openly transmitted. If your projects and productions are instructional and used for direct teaching, then in most cases no media permissions or copyright clearance is required for your media projects incorporating other copyright works.
Cable Broadcasts are open to the public, so media permissions are required. Many K-12 school districts in the United States have these.
Think in advance and plan wisely according to your project release or publication time line. The example I gave earlier about our November 19 taping is a good one. Think sequentially and release items in increments as you await the written consent for other pieces of media or for extended use.
Major Networks and Syndication
Some student projects do wind up on a major network or in syndication. I have even seen situations where student videos are used in a major news report, or, perhaps it is even featuring the work of that student to promoted them in their endeavors. In this case, it’s not only a good idea to have media permissions and copyright clearance for media you have incorporated, but is also wise for the student to copyright his or her own work. (See How to Copyright Your Works.)
Other Quick Tips, Links and Resources for getting your projects cleared for copyright
1. Use copyright cleared materials that do not require permissions such as royalty free resources, works in the public domain and materials with written consent from copyright holders that appear on the web. (Be sure and check the conditions of the license.)
2. Have a designated student or group of students whose responsibility is securing permissions. It will be a great educational experience.
3. Copyright Clearance Center (www.copyright.com) provides permissions for some copyrighted materials. Just keep in mind that it only provides the permissions and not the content.
4. Use FaceBook, Twitter and social networks to find authors, creators, publishers and other organizations who can legally grant rights. In this day-and-age, it can be easy to get permissions.
My daughter was doing a project and got the media permissions to use a YouTube video. She emailed the video owner YouTube.com:
(When doing this, be sure and use discretion – a video which has copyrighted works incorporated more than likely does not have permission to grant rights to you.)
When creating videos, podcasts and other media projects in which you have incorporated the copyrighted works of others, be sure not to let deadlines drive you to make decisions that will be costly. Once the work is published or released – it’s out there, and taking it back may be difficult or impossible.
We are here to educate, so let’s be sure and prepare our students for the legal and ethical challenges they will face.