Posted February 15, 2002 Student Affairs Online, 3 (Winter)
You’re the Assistant Director of Residence Life and you’re planning orientation/move-in for next year. You’ve decided on a “There’s No Place Like Home” theme, complete with a yellow brick road and all of the Wizard of Oz characters (don’t laugh - this really was the theme my first year as an R.A.!). You go to http://thewizardofoz.warnerbros.com/ and download some great pictures of the Emerald City, the Scarecrow, Dorothy, and, of course, Toto too. You then duplicate the pictures and put them on your Department’s website and create T-shirts, with screenprinted images of the Oz characters, for your R.A. staff. You also revise your Department’s letterhead for the summer to include a picture of Dororthy’s red shoes and the Yellow Brick Road. You even go so far as to blow up the pictures of the characters so that you can have life-sized cardboard cut-outs to place in each of the residence hall lobbies on move-in day. Thinking you can just never have enough of a good theme, a week later, you return to the Wizard of Oz website, where you download a sound file of Judy Garland singing “Somewhere Over the Rainbow”. You then ask your tech person to put the sound file on your Department’s website so that every time someone clicks on the link to “New Student Orientation”, Judy Garland belts out “Somewhere Over the Rainbow” &endash; right from the Department’s web page! Your staff loves it and you’re pretty darn proud of yourself for using modern technology to pull together such an awesome theme.And then you get a call from a very irate Dean of Students. She has received a letter from Warner Brothers that claims the University is “willfully violating” Warner Brothers’ copyright and demands that the University “cease and desist” all such willful violation immediately, or face a lawsuit that will make the Board of Trustee’s heads spin.
Have you violated Warner Brothers’ copyright just by downloading and using pictures that you found on their website? (Come on, its not like you sold them or anything!) Yes, in fact, you have.
The United States Copyright Act is a federal law that protects the expression of ideas. Literary works, musical works, dramatic works, choreography, pictures, sculptures, motion pictures, multimedia works, and architectural works can all be copyrighted. Copyright protection is generally valid from the moment the work is created until 70 years after the author’s death.
A copyright owner has six exclusive rights over his or her work. That means no other person can exercise these rights without the permission of the copyright holder. These rights include the right:
In most cases, you can purchase a “license” from the copyright owner that will allow you to exercise one of these six rights in place of the copyright holder for a specific period of time. For example, I might purchase a license from Warner Brothers to use one specific picture of Dorothy on my website for exactly two years. At the end of the specified time, my license expires and I can no longer use that picture, unless I renegotiate with the copyright holder for an extension or a new license.
Any improper use of a Copyright protected work subjects the infringer to legal action. A copyright owner is almost always entitled to injunctive relief (in English: a court order ordering the infringer to stop infringing). The copyright owner may also recover:
Note that the statutory damages are per work, which means that, if you made 300 T-shirts with Toto’s picture for your R.A. staff, the University could be liable a minimum of $150,000 in damages ($500 X 300 shirts) if the copyright holder pursued such an action!
Many people mistakenly think that the “fair use exception” entitles anyone in an educational institution to freely copy and distribute protected works. Not so. If the use of a copyrighted work is for “criticism, comment, news reporting, teaching, scholarship or research,” it will most likely be considered to be a fair use of copyrighted material. Compare an art teacher copying a photograph of the Scarecrow so that his students may develop their drawing skills with the Resident Director who copies the same picture to decorate her residence hall. The art teacher’s copying is probably fair use because it is to be used for teaching, where the R.D.’s copying is probably not fair use because it is not for criticism, comment, news reporting, teaching, scholarship or research.
The fact that a copyrighted work is used for “criticism, comment, news reporting, teaching, scholarship or research” does not alone make it a non-infringing fair use. The following four factors are also considered:
Its as easy as a “right click” and a simple “save as”. So, if it is that easy to download a picture from someone else’s website, I must be able to use it, right? Wrong. Almost all pictures are eligible for copyright protection, and if they are in fact protected, you are prohibited from copying them, distributing copies of them, and from displaying them publicly without holder permission. Downloading pictures from somebody else’s website and putting them on yours clearly constitutes copying, distributing and displaying copies. Each unauthorized copy made represents one violation. Granted, it is unlikely that a representative from Warner Brothers will be strolling through your residence hall and notice the life-sized cardboard cutout of the Tin Man in your lobby, but it is highly likely that such a representative will notice such pictures on your website. Many copyright holders employ people to do nothing but surf the Internet, looking for violations of their copyright. This doesn’t mean you can never use a picture on your website, it just means that you need to obtain permission before you use the photo. Unfortunately for schools on a limited budget, obtaining permission usually means paying a licensing fee to the copyright holder.
Sound files are even easier to copy, considering that they can either be download from a website or uploaded from a personal compact disk. But you cannot legally stream either uploaded or downloaded music on your website without first obtaining two separate licenses to do so.
All recorded songs are copyrighted on two levels: the songwriter retains ownership rights to the lyrics and composition (the “musical composition portion”), while the record company that recorded the song retains ownership rights to the actual recorded performance (the “sound recording portion”). Therefore, before you make any public performance of any copyrighted song, you must first obtain separate licenses from both the songwriter and the record company. Steaming sound recordings on your website is clearly a public performance.
A license to perform the sound recording portion of a song can be obtained directly from the United States Copyright Office. One license enables an entity to perform all the copyrighted works for which that entity obtains a musical composition license. The rates for these licenses are currently the subject of an arbitration proceeding, but it is expected that the rates will be structured as an annual flat fee based on the number of users (i.e., the number of people who see your website every day) multiplied by the number of hours the music is available.
A license to perform the musical composition portion of a song is most often purchased as a blanket license from one or more of the three recognized “performing rights societies” &endash; ASCAP, BMI or SESAC. A blanket license from any one of these societies will entitle you to the performance rights of any of the musical works in their respective catalogs. ASCAP and BMI share the majority of the market, whereas SESAC maintains a smaller, more specialized catalog. The current minimum license fees are: ASCAP at $264/year, BMI at $259/year, and SESAC at $150/year. As you can see, the cost of having music streaming on your website can be quite high!
So, the moral of the story here is that just because you can download it in minutes, or photocopy it in seconds, it doesn’t mean you can use for free. And don’t be fooled into thinking that you won’t get caught because you are just a little department at a tiny college in the middle of nowhere &endash; once you’ve posted something on the World Wide Web, you’ve made yourself accessible to the world. Make sure you obtain permission to use copyrighted work before you actually use it.
Jennifer D. Sawyer is an attorney at Bernstein, Shur, Sawyer, & Nelson in Portland, Maine, where she practices Education Law and is a principal consultant in Advanced Educational Solutions, a legal consulting division of the firm that helps educational institutions navigate their way through complex legal and policy issues. Before she became an attorney, Jennifer worked in Residence Life at the University of New Hampshire and Northeastern University.