Avoiding the Gift of Copyright Present

‘Tis the season for students to perform.  Oh the plays and musicals that we encounter and enjoy during the holiday season. 

Consequently at every copyright workshop I’ve conducted, I’ve been asked:  “Our students are doing a holiday play or musical; what are the restrictions on video recording, duplicating and perhaps selling as it relates to copyright restrictions?”

Many may presume that it is okay to proceed if there is no profit being made: however, though you may have some liberties with performance rights, the fact that you video record the performance creates the need for permissions.

Why get permission?

• To ensure you do not get sued, especially if you plan to duplicate and sell the video of performance.
• To prepare students for what they will encounter as they further their education, engage in their career or own a business.

After all, licenses, legalities and liabilities are just a part of the world in which we live, and if we do not teach students how to get permission for works, we have done them a disservice.  And worse, if we say, “Well, it’s ok, let’s just do this anyway” and they learn to apply this method, then they could very well lose their job or business one day if they apply the same principles.

Whether they work for Apple, Google or whatever their career choice may be, the obtaining of permissions and being compliant in the areas of licenses and ownership will be a major part of their job.  Now is the time to learn. Some may say, well, everyone else is doing it, so we will not take the time to go through the headache.  Not true, as there are actually many leading school districts that are demonstrating proper procedure.

One school system that is setting a great example in this area is Bedford Public Schools in Temperance, Michigan.   Jennifer Earl is the Director of Instructional Technology at the school district, and Trish Gentil is the Technology Assistant at Douglas Road Elementary in the same district.
The story began when I received a call from Jennifer in early December of 2007, and she was concerned about how to handle the video recording of the elementary school’s performance of Feliz Navidad.    After some brief discussion, Jennifer and I both agreed that it was best for them to obtain the permissions they needed.  I gave Jennifer some tips on how we obtain licensing rights at Soundzabound and recommended that they try the same measures by starting with some research on the composer and performer, Jose Feliciano.

Here is Jennifer’s account of what followed:
It was the second week of December, and many of the school holiday projects were already in full swing when the phone call came.  A technology assistant for one of our elementary buildings, Trish, was calling concerned about a holiday project that one of the kindergarten classes was in the midst of creating.  A kindergarten teacher was teaching her students accompanying movements to the famous holiday song, Feliz Navidad.  While being recorded by video, the children were going to perform their movements as the song was playing.  Then each student would give a copy of the taped performance to their parents as a Christmas gift.  It took several moments and a couple of deep breaths before I could find the words to respond to a project fraught with copyright violations.  I thanked Trish for calling and voicing her concerns, and explained this was a perfect and all too common example of teachers pursuing creative ideas with no inkling of the numerous copyright laws that would be violated in the process.

While claiming ignorance may not be an acceptable excuse in a court of law, it still appears to be the most pervasive copyright problem in schools.  In our efforts to bring some urgently needed copyright education to teachers in our district I’ve found that people had shrugged off what little they knew about copyright long ago, feeling that it didn’t apply to them because they were not making a profit when using the material, particularly media. They seemed comfortable ignoring the law because while the appearance of the infamous “copyright police” may have been joked about, it was never considered a real possibility. It wasn’t until teachers and administrators started hearing about recent litigation against schools for copyright infringement that they began to take notice and ask questions about whether what they were doing would be considered illegal.

I endorsed Trish’s concern in feeling uncomfortable about this project and confirmed that indeed there were several copyright issues about which to be concerned.  First, the teacher did not have a license to use the Feliz Navidad recording in a live performance. Second, the teacher did not have a license to record the song, and finally, no license existed to make multiple copies and distribute the recording. Because the teacher didn’t think about the copyright issue ahead of time, her intended project was in jeopardy of dismantling unless she was able to get written permission from the copyright holder of the song and recording. With only a week of school left until vacation, the prospect of securing that permission looked pretty dismal. Yet, rather than deliver the disappointing news to a classroom full of eager 5 year olds, Trish took matters into her own hands, determined to complete this project and do it legally.

Jose Feliciano was the recording artist of the song they were using, so Trish started her search there.  She searched the Internet and discovered that Feliciano held the songwriting and recording copyright for the song. She found the official website of Jose Feliciano and found contact information for Feliciano’s attorney.  She emailed the attorney explaining the school project, how they wanted to use the recording and requested permission for that use.  And then she patiently waited knowing a response, whether permission was granted or not, may come too late or not at all.  An astonishing four hours after she sent her request, Feliciano’s attorney replied to her email with this response, “As long as it is not commercially exploited or sold, permission granted.  Happy holidays and good luck.”

The kindergarteners performed, the event was taped, and the gifts were given. While the project itself was a success, several other valuable lessons were illustrated.  As educators we have a responsibility to think about and evaluate our use of copyrighted material. As educators we have a responsibility to model and teach awareness and adherence to copyright laws to our students. As educators we are not exempt from copyright laws just because we aren’t making money on its use.  While the positive outcome of this particular story may not happen every time, it is certain that if we don’t attempt to ask for permission….we won’t receive it.  This story illustrates that with a little forethought and determination it is possible for educators to use protected material in projects without compromising the law and endangering themselves or their school in copyright litigation.
Jennifer Earl, Bedford Public Schools

In addition to Jennifer’s account, I must mention that they have modeled procedures which not only kept them from a potential lawsuit, but also demonstrated permissions procedures to other teachers and students throughout their school district.  This is extremely important at the high school level, where students will soon go on to college, then a career, and will be held accountable for their actions in a corporate or professional environment. 

By communicating these practices, the awareness grows that not everyone is proceeding with their projects anyway and breaking copyright because it is too much trouble to do the research and get the permission.  Those who choose the easy way out will surely set an example for a student to do the same.  And, if that student acts in like manner, they could be faced with job loss, lawsuits and severe loss of credibility and their reputation. 
In a recent copyright workshop I gave at a state-wide conference, I had about 50 attendees in a break-out session, and this same discussion came up.  Over 90% of the participants agreed honestly they would proceed without permissions.  Of the 10% who said they would not proceed, one lady raised her hand and shared a testimony.

At the beginning of their school year, they began a 9-month long video project to be displayed and released at the end of the school year.  One of the high school students brought in some popular music to be used in the introduction.  She voiced her concerns over the copyright, and the student insisted that in spite of any legal issues, they should use the song. Rather than saying “OK,” she told the student that if he really felt the song was critical, he needed to get the permissions – even if it took the whole school year.

It took four months, but the student was able to do the research and obtain the written permissions needed. 

Because of this teacher’s wisdom, this high school senior probably learned more in doing that research than some people learn in a lifetime.
And by comparison, how much more did this student learn under her direction through his research, phone-calls, emails and stress to meet a deadline, than  some of the students would have learned under the direction of those who made up the majority who chose not to obtain permissions?  There is no comparison.

As a musician who grew up performing, I never dreamed that I would work for an internet-based software company, where I would have to review and approve contracts, agreements and licenses on a daily basis, while seeing to obtain permissions from everything from songs to other types of digital content.  Even our 3rd party technicians who work for AT&T, Apple, and Microsoft must adhere to stringent licensing restrictions and legal issues every day, and the inability to do so can cost millions of dollars in infringements, loss and worse, a bad reputation.

We are training the students now who will build our economy for the future of our great nation.  Please set a good example for them to follow.


BrittBarry S. Britt is the Executive Producer and Dir. of Education for Soundzabound Royalty Free Music in Atlanta, Georgia.
Jennifer Earl is the Director of Instructional Technology at Bedford Public Schools in Temperance, Michigan.