Policy for the Use of Copyrighted Works: VIII: Use of Music

The topic of music and copyright is a complicated one and has many differing applications in higher education. A musical work could have multiple copyrights for the composition, lyrics, publishing, and recording by an artist. Different uses of music on campus, outside of fair use exceptions, require different types of licensing.

In 2003, the National Association for Music Education (NAFME) updated their music copyright guide entitled “United States Copyright Law: A Guide for Music Educators”. In 2013, the National Association of College and University Business Officers (NACUB) and the American Council on Education (ACE), partnered to create a “Use of Copyrighted Music on College and University Campuses” report. The report in part, explains fair use exceptions available for educational use of music, expands upon the NAFME guidelines, and details the types of music licenses available.

A. Definitions

1. Recording differentiation

a. Sound Recording – performance of a musical work
b. Phonorecord – the physical media the sound recording is stored upon. Examples include analog media such as records and cassette tapes, and digital media such as compact discs and digital audio files.

2. Types of music copyright

a. musical compositions (written music, scores, and lyrics) - protects the writer(s) of the music and the lyrics and the publisher, indicated by a ©
b. sound recordings of performances of musical compositions (vocal or instrumental) - protects the performers and sound- recording copyright holder, indicated by a (P).

B. Reproduction of Copyrighted Music

Reproduction of musical compositions requires fair use analysis (see Section III.C.: Fair Use). Guidelines of frequent uses are provided below.

1. Reproductions Which are Permitted:

a. For academic purposes (other than performance), single or multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a performable unit, do not exceed 10% of the whole work, and no more than one copy per student is made.
b. Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.
c. Printed copies which have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics altered or lyrics added.
d. Musical works whose copyright has expired and entered the public domain – all works published in the United States before 1923.
e. A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or instructor.
f. A single copy of a sound recording of copyrighted music may be made from original, legally obtained sound recordings owned by an educational institution or instructor for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or instructor. (This pertains only to the copyrights of the music itself and not to any copyright which may exist in the sound recording.)
g. Relatively brief excerpts (only as much as necessary) of commercial recordings used in illustration of an argument or comparison.

2. Copying for Which Permission is Required:

a. Copying to create, replace, or substitute for anthologies, compilations, or collective works.
b. Copying of or from works intended to be "consumable" in the course of study or teaching such as workbooks, exercises, standardized tests, answer sheets, and like material.
c. Copying for the purpose of performance, except as noted 1(b) above.
d. Copying for the purpose of substituting for the purchase of music except as noted in 1(a) and 1(b) above.
e. Copying of out-of- print musical works.

C. Performance Rights

The copyright owner has the exclusive right to control the performance of a musical work. The University has blanket campus licenses with the American Society of Composers, Authors, and Publishers (ASCAP), and Broadcast Music, Inc. (BMI) which grant the ability to perform non-dramatic works of music, either live or recorded, on the CNU campus and via CNU internet transmissions (cnu.edu appears in the URL). The licenses cover performances such as those by student bands and college orchestras, and performances held on the CNU campus for special events, the fitness center, concerts, dances, athletic events, and student club parties. The license agreements also cover the transmissions on WCNU radio, CNU TV station, and the CNU website (where cnu.edu appears in the URL).

Beyond these licensed public performance rights, music educators and others have special needs which are addressed in Section 110 of the Copyright Act as limitations on the exclusive right of performance. Copyright law specifies the following uses are NOT infringements:

1. Performance of any copyrighted work by instructors or students in the course of face-to-face teaching activities, in a non-profit educational institution, in a classroom or similar place devoted to instruction.
2. Performance of a nondramatic literary or musical work at a school concert if there is no purpose of direct or indirect commercial advantage, no fee or compensation paid to the performers, promoter or organizers, and no admission charge; if there is an admission charge, all of the proceeds must be used only for educational or charitable purposes; and the performance may not take place if the copyright owner objects in writing seven days before the performance.
3. Performance of nondramatic literary or musical works or of dramatic-musical works of a religious nature, in the course of services at places of worship or at a religious assembly.

D. Recording (Mechanical Rights)

The copyright owner has the exclusive right to reproduce copyrighted works in phonorecords (audio only recording). Once phonorecords of a nondramatic musical work have been distributed to the public by copyright owner, any other person may obtain a compulsory license (also known as a mechanical license) to record the work by complying with certain procedures and by payment of the royalty as provided in Section 115 of the Copyright Act.

When an instructor wants to record a student performance and distribute copies of the phonorecord within the community, or when a student group records a “cover” of a popular song and wishes to sell it, they must obtain written permission from the publisher to make and distribute CD or audio recording for a specific copyrighted composition. A compulsory license can be obtained by contacting the Harry Fox Agency.

E. Preparation of Derivative Works

The copyright owner has the exclusive right to make arrangements of a piece of music. However, for educational purposes the following exceptions are allowed:

1. Purchased printed copies of a copyrighted work may be rearranged, edited or simplified, provided that the fundamental character of the work is not distorted or the lyrics altered or added. For more significant alterations, you must contact the publisher in advance for permission.
2. Under a compulsory license obtained for recording, a musical arrangement of a work can be made to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work. Any arrangements of a copyrighted work outside of these exceptions must obtain copyright permission.

F. Grand Rights

Grand rights cover the right to perform music as part of dramatic performances including operas, musical plays, and ballets. These uses are not covered under public performance rights granted by the campus BMI and ASCAP license agreements. Grand rights are generally negotiated with the copyright owner or obtained from a licensing agent.

G. Synchronization Rights

Synchronization rights are the rights to use musical works and/or sound recordings in movies, videos, television, or computer programs, etc... These are not covered by compulsory licenses needed for audio recordings or by University Public Performance Rights license agreements. To utilize music in combination with visual images, such as a video on the university website or student made videos, synchronization licenses must be obtained if the music is copyrighted.

Options for free, legal music clips, and a list of licensing agencies may be found on the CNU Copyright Resources: Music page.