Fair Use Question of the Month: I Have Permission From The Performers, But What About The Music Rights?

In this month's fair use question, a middle school teacher wants to upload video of an orchestra rehearsing copyrighted music but is concerned with licensing rights.

Dear Center for Social Media,

I'm a middle school teacher and I'm preparing an online curriculum on musical careers. I'd like to insert into it some video material from a rehearsal of an orchestra playing classical music. I have permission from the performers to record them for this purpose, but what about the music itself? Will I run into licensing problems, or could this be fair use?

Thank you,

Steve


Hi, Steve,

This music, since it’s classical, could well be in the public domain, and you wouldn’t even need fair use. But the orchestra might be using a recent arrangement of the music, which might still be under copyright. (Whether arrangements are actually copyright-protected is in some dispute.) So you need to find out what arrangement they are using. If it is under copyright, then you need to consider whether fair use could apply.  The Code of Best Practices in Fair Use for Media Literacy Education, and especially its first and second categories, may give you some help with your fair use reasoning, even though it wasn’t designed for music teachers. You will ask yourself, Why are you excerpting the orchestra? What do you want your students to take away from this segment? How will you help them to understand what to get out of the segment? The answers to those questions will help you understand how you are repurposing the orchestra’s performance, which we assume was executed in order to share with music-loving listeners a piece of music. They will also guide you as you ask yourself how much of the musical performance you need; because you will be explaining your pedagogical purpose when you excerpt this material, the logic of your repurposing will be clear.

Good luck!

The Center for Social Media