Copyright Basics Music Educators Should Know About
Music educators are busy focusing on teaching students, so it’s no surprise that many might not have a tight grasp on copyright law. However, copyright law plays an important role in almost every facet of a music educator’s job, whether they know it or not. Understanding the basics of copyright and how they might apply in a day-to-day reality can save music educators and their institutions a lot of headaches down the line.
First, let’s talk about some important copyright basics that music educators should know, and then let’s look at five scenarios in which copyright law might show up for music educators in their day-to-day work.
Copyright Background Information for Music Educators
There are a few basics of copyright law that are important for music educators to understand.
Copyright law protects minimally creative expressions that are fixed in a tangible form like music compositions and sounds embodied as sheet music, recordings of other performances, lyrics, etc. The Copyright Act grants copyright owners several exclusive rights, including the rights to reproduce, distribute, publicly perform, publicly display, and prepare derivative works based on their copyrighted works. For more on the exclusive rights granted under copyright law, check out our Copyright Law Explained page.
Copyrighted works come in many different forms, but music educators will usually be dealing with two primary types in the context of music—the musical composition and the sound recording, each of which has their own individual protections. The Copyright Office Circular 56A has more information about the differences between these kinds of works.
Also, it’s important for music educators to familiarize themselves with the various kinds of licenses that they may need to acquire from copyright holders and publishers, information that can be found in our Common Types of Music Licenses and Royalties page.
Whenever use of a copyrighted work implicates one or more of the exclusive rights without permission of the copyright owner, it typically constitutes a copyright infringement unless an exception applies. The first kind of exception that music educators should think about are the educator-specific exceptions found in Section 110 of the Copyright Act. We have also written a comprehensive blog about such exceptions. Most relevant to music educators are Section 110(1), which permits non-profit educational institutions to perform copyrighted works during face-to-face instruction (such as rehearsals), and Section 110(4), which allows nonprofit educational institutions to publicly perform nondramatic musical works under certain circumstances.
If Section 110 exceptions don’t apply, music educators should then consider whether the fair use exception applies. Fair use is an exception in copyright law that permits certain uses of copyrighted works without the copyright owner’s permission, depending on the specific facts and circumstances and how they play into four statutory factors. You can learn more about it in our Copyright Law Explained Fair Use section and Fair Use Exception to Copyright page. When determining whether a use qualifies for the fair use exception, there is no bright-line rule and every case is fact-specific.
Finally, music educators should know about the “Guidelines for Educational Use of Music,” which, while not actually binding law, are industry led-guidelines negotiated by legislators and organizations representing music publishers, music educators, etc. (such as the National Music Publishers Association or NMPA) during the legislative process of the Copyright Act and were subsequently included as legislative history and act as persuasive authority on the issues. They provide general guidance on numerous copyright-related topics for music educators, and how the various areas of copyright law apply.
1. Making Copies of Music
A music educator may want to make copies of sheet music for a variety of reasons, such as when a student forgot their copy at home just before a concert. While many scenarios may seem innocuous, the reality is that the Copyright Act grants the copyright owner the exclusive right to reproduce the work. Making an extra copy without permission would be copyright infringement absent an applicable copyright exception. In most circumstances, the necessary license or permissions would need to be secured to make copies for the classroom setting from the copyright owner of the musical work or sound recording.
However, fair use may permit certain instances of copying, though the analysis is always fact-dependent because there is no black-and-white rule as to whether a use qualifies for the fair use exception. When making copies, the most important considerations for music educators are why you’re making a copy and how that copy affects the work’s market. Educational or nonprofit uses favor fair use findings, whereas more commercial uses, such as to avoid a legitimate purchase, harm the work’s market and therefore disfavor fair use findings.
In addition to evaluating fair use, a music educator can also consult older guidelines, like aforementioned The Guidelines for Educational Use of Music, which outlines a few specific scenarios of copying that may be permissible based on fair use analysis or our Tips to Navigating Copyright Law for Educators, both of which are good starting points to reference.
2. Performing Music
Educational music groups often perform in a variety of settings to showcase what students have been learning and practicing. When copyright-protected musical works are performed such as in concerts, parades, competitions, fundraising events, etc., such uses implicate the copyright owner’s right of public performance. Purchasing a copy of sheet music does not, by itself, also grant the right to publicly perform the work, as ordinarily that right must be obtained through a license or other authorization from the copyright owner. While most public venues in which music performances take place will usually have licenses in place for public performance of music, copyright law recognizes the unique role public performance plays in music education and has statutory exceptions that music educators should know about.
Two noteworthy exceptions for music educators to be aware of are in Sections 110(1) and (4) of the Copyright Act. Section 110(1) permits nonprofit educational institutions to perform copyrighted works during face-to-face teaching activities, such as rehearsals and classroom instruction. Section 110(4) permits the performance of nondramatic musical works (a musical work that was not created for use in a motion picture or dramatic production) that are not conducted for commercial advantage, including some performances that charge admission, provided all proceeds are used for educational, religious, or charitable purposes. Together, these exemptions cover most routine performances by school music groups.
A clear example is a seasonal concert that a high school band puts on after rehearsing their programmed pieces for a few months. The concert is the culmination of their rehearsals and education during those past months— a crucial part of these classes’ educational mission. As a result, the rehearsals and performance like this would probably fall within the statutory exemptions, even if they charged admission for the concert (provided the proceeds go towards an educational, religious, or charitable cause).
But what if the local shopping mall asked for the band to perform a holiday concert? Things could become a bit muddier when the performances aren’t immediately related to educational purposes, and you’d likely have to get proper permission in this case since the performance could be considered as being for “direct or indirect commercial purposes.” It goes to show you that when considering copyright, music educators should evaluate the purpose and circumstances of each performance rather than assuming every school-sponsored event is automatically exempted.
3. Recording/Posting Performances Online
A common misconception among music educators is that permission to perform a musical work live also grants permission to further record and post performances on the internet. Under the Copyright Act, recording and posting a performance of a copyrighted work implicates other exclusive rights like the right to reproduce, distribute, or further publicly perform the copyrighted musical works beyond any original licensing term or what an exception permits. The recording effectively contains a reproduction of the underlying musical work and posting it online could implicate the distribution right where the recording could be further downloaded by a public audience.
Recording and posting performances and rehearsals online is an increasingly common practice for educational music programs, whether on public platforms such as YouTube or private password-protected pages for students and parents. Although these recordings are often for legitimate reasons, such as letting families view concerts they missed or allowing students to review rehearsals, some of them could result in unintentional infringement. Livestreaming performances could have similar issues (even if there is no permanent recording made from the stream), especially if the original license permitting the performance in the first place was limited to in-person live events with no additional livestreaming or other forms of digital public performances.
Music educators who wish to record and upload performances on public platforms should review their existing licensing terms or seek permission from the relevant copyright owner as necessary. Factors such as limiting access to students, posting recordings temporarily, and using them solely for educational reasons may mitigate the risk of infringement but, just as before, every situation is fact-dependent as are any applicable exceptions like fair use. It’s typically safer to check with a copyright expert or lawyer or just ask the copyright owner whether a license covers certain uses. Accordingly, music educators should familiarize themselves with the licensing policies of the publishers whose music they perform and, when in doubt, request permission before recording or distributing performances.
4. Making Arrangements/Alterations to Music
Music educators frequently bridge the gap between the music as it is written and the abilities or instrumentation of their ensembles to perform such music. Accommodating younger or less experienced musicians often requires making certain changes to a composition, such as simplifying passages, adjusting ranges, or reassigning parts. These alterations, however, can potentially create a copyright issue. If the alterations are substantial enough, they may implicate the copyright owner’s right to create derivative works.
A derivative work is a creative work that recasts, transforms, or adapts a copyrighted work, such as an arrangement of an orchestral composition. Using a copyrighted work in this way requires permission from the copyright owner of the musical work. So, the important question is whether the degree of changes made to the original composition alters the protected creative elements by creating a substantially new adaptation based on the original work. You can read more about derivative works in our Copyright Law Concepts article as well as the Copyright Office Circular 14.
For example, let’s say band director Mr. Smith wants to program a particular piece, but the tuba part involves notes too high for his players. So, Mr. Smith decides to lower those sections of the tuba portions down an octave to make it easier for his players. Is this simple change permissible, or does it constitute an unauthorized derivative work? Based on these facts alone, this alteration is likely fine. The change serves a practical instructional purpose, affects only a small portion of one part, and leaves the overall character and expression of the composition intact.
Now, what if the piece that Mr. Smith wanted to program was originally written for a full orchestra with string instruments, but Mr. Smith wants to arrange the piece for his wind ensemble instead? Adapting the work for an entirely different ensemble, requiring widespread changes to orchestration, texture, and instrumental writing, would more likely constitute a derivative work requiring authorization from the copyright owner unless permission has already been granted through the publisher or licensing agreement (permission for educational ensemble arrangement licenses can also often be acquired from organizations like Tresóna). As noted before, this is always going to be specific to the facts and context of the situation, and of course, music educators can also weigh these same facts to determine whether an exception like fair use may also apply.
5. Using Copyright-Protected Material for Educational Purposes
Music educators routinely rely on a variety of copyrighted materials to enhance instruction, including professional ensemble recordings, rehearsal videos, published scores, etc. Thankfully, copyright law recognizes the value of such uses and their positive impact on the classroom. Under Section 110(1) of the Copyright Act, instructors at non-profit educational institutions may perform copyright-protected works for face-to-face instructional settings without obtaining prior permission from the rightsholder. This allows a band director, for example, to play a professional recording to demonstrate tone quality, interpretation, or stylistic nuances as part of a live lesson.
However, the key term is “face-to-face,” as things become much more complicated when the materials are used over distance learning or through asynchronous methods. Those uses start implicating other exclusive rights. Some digital instructional uses may instead qualify under the TEACH Act (Section 110(2)), which creates a limited exemption for certain distance-learning activities conducted by accredited nonprofit educational institutions. But it’s only for very specific circumstances that meet particular criteria rather than acting as a broad exemption, and does not apply to a work that is produced or marketed primarily for performance or display as part of instructional activities by digital transmission (or “mediated instructional activities”). Alternatively, a music educator can also consider whether a particular use may still qualify for the fair use exception.
Conclusion
Music educators will inevitably need to know a few things about copyright law. From making emergency copies of sheet music and performing at concerts to recording rehearsals, arranging music, and using copyrighted instructional materials, music educators regularly encounter situations where their educational objectives implicate the exclusive rights of copyright holders. Fortunately, while it may seem intimidating, music educators do not have to be copyright lawyers to understand how it affects their daily instruction.
Most issues in this space can be avoided by understanding a few basic principles, such as recognizing which exclusive rights of copyright are implicated, only relying on educational exceptions when they clearly apply, obtaining appropriate licenses or permissions when necessary, and when in doubt, asking the copyright owner first. Understanding these concepts allows music educators to focus on the most important thing: providing meaningful musical experiences for their students, all while respecting the rights of composers, publishers, and other creators.
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