Reading past the headlines - Pointing to, yet looking beyond the Code of Best Practices in Fair Use for Media Literacy Education

On November 11, 2008, media literacy educators released a Code of Best Practices in Fair Use. 

Some people have asked me recently how this would change our instruction and workshops on Fair Use - not realizing that the code of ethics falls in line with what Soundzabound has taught all along on Fair User as part of our staff development services which cover not only music but other forms of media.

The code of ethics helps to clarify many myths and misconceptions regarding Fair Use and serves as a resource that emphasizes instructional use, critical thinking and transformative content when using copyrighted materials for teaching purposes while giving proper attribution and acknowledgment.

The guide identifies five principles:
#1  Classroom Teaching with copyrighted materials
#2  Copyrighted material within curricula
#3  Sharing teaching materials
#4  Student work
#5  Sharing student work

Within each principle there are three sections:
a) Description
b) Principle defined
c) Limitations

It is important to read beyond the headline to the limitations set forth in each of the committee’s principles since most people fail to recognize, and therefore, abuse the rights we have been given as educators within the Fair Use Guidelines. 

As with any liberty, when we abuse it, it does draw negative attention, and so we, as educators, do have an ethical responsibility toward  the freedoms we have been given in this area.   The message of “yes you can” does not mean a free-for-all; therefore, special attention to the limitations must be given.

The Code of Best Practices also contains a section called COMMON MYTHS ABOUT FAIR USE.   On page 16, the myth of IF I’M NOT MAKING ANY MONEY OFF OF IT, IT’S FAIR USE (AND IF I AM MAKING MONEY OFF IT, IT’S NOT), is clarified by saying that “non commercial use can be a plus in fair use analysis, but its scope is hard to define.”  In the latter part of the paragraph, the code also emphasizes relying on tranformativeness. 

However, in this age of brand infringement, we find that there is little we can do about this.  That is why it is so important for a teacher or student, even in non-profit situations, to take into account how an artist’s brand is used.

A great example is the recent lawsuit filed by Jackson Browne against the McCain campaign for using his song, “Running on Empty” without permission (see Jackson Browne Sues GOP And McCain Campaign).  – Sam Stein, Huff Post Reporting.

In a related follow-up article, the McCain lawyers claimed, “their client was legally allowed to use the track because he was not seeking to gain profit from it,” but the Jackson Browne attorneys disputed that “the Federal Courts have long held that the unauthorized use of a famous singer's voice in a commercial constitutes a false endorsement and a violation of the singer's right of publicity."

By the same token, students and teachers should use caution and consideration even for educational purposes not to place an artist’s or copyright holder’s material into a video or other form of multimedia which may go against their beliefs.

We may argue this point; but unfortunately, the cost of incompliance can amount to astronomical attorney fees, and though you may have a case, your cost to fight it typically outweighs the benefits of your own principle.  And, artists and copyright holders do have a brand that they enforce.  (See related article Universal demands takedown of homemade dancing toddler clip; EFF sues). 

The mother in this case has joined forces with the EFF (Electronic Frontier Foundation) to recover damages after she "has been injured substantially and irreparably" and wants money to cover her legal expenses.

The Code of Best Practices states that no lawsuits have occurred, but in the case of illegally downloaded music – they have, and, for other branding or improper use of Fair Use, there have been lawsuits that are settled out of court for undisclosed amounts of money.  Not by hearsay, but by first- hand accounts do I speak of parents specifically who have paid over $60,000.00 in out-of-court settlements.  In saying this, I certainly do not advocate the court’s ruling but feel it is my responsibility to give caution where caution is due. 

Regarding situations of sharing videos and other projects in public, if a student posts something on a video sharing network such as YouTube, it may not be a big deal, but when a school does it they become a bigger target.  Nearly everything gets posted to a public environment these days, and for audio especially, it is wise to look toward other alternatives to Fair Use.

In the area of copyrighted music, it has also been a factor that the majority of popular music that students not only listen to but choose to use in their projects have sexual content, illicit lyrics and other content which is deemed unsuitable for educational content with no formal screening process.  This too can bring liability to schools and districts.

Now that we live in a digital universe, we can no longer draw the line between copyright holders vs. educators, since we are ALL creators of digital content; therefore, we are copyright holders.  This also means that now more than ever, a mutual respect for one another’s property and the proper use of it to teach, engage and enhance is of utmost importance.

Based on this, in a short time we will enter a brand new era which exceeds our limitations in education regarding Fair Use, where student and teacher creativity combined with educational licensing from major artists will be brought together through modern technology to meet our needs.

Barry S. Britt is an ASCAP member, music licensor, digital copyright instructor and is co-founder and executive producer of Soundzabound Royalty Free Music in Atlanta, GA.