Moving at the Speed of Creativity - Fair Use in Videos Using Pictures with Copyrighted Music

Fair Use in Videos Using Pictures with Copyrighted Music

Published by Wesley Fryer in digitalstorytelling, intellectualproperty on December 21st, 2009

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If you’ve spent much time helping students and teachers create with media, you’ve almost certainly run into some form of this question: “Can I use [song X] in my video project and just make a synchronized slide show of photos with it?” Implicit within this question are a series of other questions, including:

Will this use of a copyrighted song without permission qualify as “fair use” and therefore be legally permissible?
How does the publishing venue change the answer to this question? (i.e. if the video is published on the open web, accessible to anyone without a password or login, is that different than only sharing it with others face-to-face or within a walled-garden learning management system?)

In our Celebrate Oklahoma Voices learning community, we encourage participants to create short videos which incorporate audio narration with interview audio they’ve captured using a portable mp3 recorder. We don’t encourage participants to take a set of photos and simply sync them to a copyrighted music track, later publishing that video on our website. This situation DID happen this past fall, and we did not approve that video to be included in our online learning community. It did not seem to qualify as “fair use” because it simply wasn’t very transformative, it was simply photos synced to a song. It was touching, but didn’t seem to pass copyright / fair use “muster.”

Today I came across the YouTube video “My Favorite Things,” which is a video of synchronized photos utilizing Julie Andrew’s well known rendition of this song from the musical, “The Sound of Music.” This video is included on the website TOTLOL.

I love this song and it’s wonderful to see it synchronized to relevant photographs, but I wonder if this is legal fair use? My sense is that it isn’t. Temple University’s Media Education Lab’s “Code of Best Practices in Fair Use for Media Literacy Education” focuses on the need to create TRANSFORMATIVE media products. I’m not comfortable with videos like the one above passing this litmus test, especially when they are shared on the open web. Yet there this video is, shared both on YouTube and TOTLOL.

Mathew Needleman‘s K12Online09 presentation, “Steal This Preso! Copyrights, Fair Use, and Pirates in the Classroom,” addresses these very issues. I have not seen it yet, but am eager to hear how Mathew addresses these issues and would answer this question. Joyce Valenza and Kristin Hokanson, who have been very involved with the copyright work of Temple University and others focused on fair use and “transformativeness” in media products, could also share valuable perspectives on these questions I’m sure.

What’s your take? Would you be comfortable with students and teachers at your school posting videos similar to “My Favorite Things” on your school or class website?

The copyright and fair use resources we sharing during our COV workshops are available on our project wiki.

Technorati Tags:
copyright, edtech, education, intellectual, k12online09, property, school, university, ip, temple, medialab

On this day..

6 Comments »

http://year6l.blogspot.com William

I face a similar dilemma quite frequently. What also worries me is the fact that when students enter my class in September they seem to have very little understanding of Fair Use, and appropriate use of copyrighted materials. I wonder what has been done in the years previous. Inevitably, every year in the first week we have a “what can we use and what can we not use” lesson. In a nutshell, I make it a requirement that they access free legal sites such as the Free Music Archive and at the end of the presentation they identify the author(s). Thankfully, by this time of the year, the students are veterans at accessing and using the allowed materials.
http://concretekax.blogspot.com/ Concretekax

I have a question regarding fair use of creative commons pics from Flickr. I am preparing to present at a computer conference and found creative commons pictures. Are they fair use to use in a presentation? Is copying the link and putting it on the slide enough?

I know there is a page of html code but I do not know how to use that on a powerpoint slide. Thanks
http://brandtschneider.blogspot.com/ Brandt Schneider

I see no transformative use. If I arrange the song for my band I still have to pay copyright fees. I cant see how taking the song as is and putting it into a video meets the spirit or letter of the law.

If this was a commercial for Pepsi we would certainly expect the ad agency to pay for the song.
http://www.techsavvyteacher.com/blog Jason

I think this is an important topic that is complicated by several factors, not the least of fact that so many teachers believe that NO restrictions apply to them while an equally large number believe they have NO rights at all to use media. I have been careful to direct students to Creative Commons pictures, music and video over the last couple of years and for most, that’s great, but I always have a handful of kids that insist (or just can’t understand) why they can’t use their own, popular music. In those cases, I simply can’t share those materials with the public…
http://www.creatinglifelonglearners.com Mathew

Thanks for mentioning my preso for K12Online.

I would agree that the posting of this video on the internet is not fair use (while using it as an in-class editing assignment probably would be fair use).

However, youtube is kind of the equivalent of the wild west in terms of copyrights. As they’re finding ways of monetizing copyright materials for themselves as well as for the original copyright holders (selling songs featured in videos, for example) I’m not sure that the dust has settled enough to say that posting the video there is wrong.

I have some problems with the video from a purely creative standpoint. Is showing a picture of a present tied up with string to accompany a lyric, “tied up with string” all that creative?
Jethro Taylor

I live in Canada, where the rules around this kind of thing are somewhat different, as our Fair Dealing exemptions are not as comprehensive as those in the States.

In both instances, however, I believe this would violate both the spirit as well as the letter of the law: not for educational use (unless, perhaps, the song was one of the numerous ones out there relating to math or science or other ‘geeky’ topical material); non-transformative; not performing critical analysis of the subject; etc.

However, one should look into specific licensing situations for each school (or district). For example, here in BC, we are covered by a Province-wide agreement with SOCAN that allows us to do this very thing with copyrighted music (as well as play background music in schools, etc.). While we do not have an exemption under our Copyright Act, we do have secondary licensing in place to allow it. Many tariff collectives (such as RIAA in the US) are willing to work with schools to allow derivative and non-transformative works, as long as they are intended for audiences WITHIN the shcools- this may prohibit you from posting these works to Youtube, but you can distribute them within your organisations via intranet or sneakernet (physical discs).

With regard to Creative Commons works being used, it’s simple: check the CC license being applied to the work. If it allows non-commercial, by attribution, simply attributing the Flickr user’s name under the photo (or at the end of your slideshow) will meet the requirements. If they allow derivatives, you can alter the photo to meet your own requirements (crop, colour adjustment, etc). Educational uses fall clearly under non-commercial, so you don’t need to worry about that.

I agree with Mathew about Youtube being a grey area in terms of copyrights. One interesting thing to note is that their TOS allows you to use stuff posted on the site for pretty much any purpose, as long as you’re using Youtube’s interface (ie, embedding the video in your own site is allowed, as is streaming it directly to your audience in a presentation). This means that if a studio uploads content (say, music videos, for example), you can use it- they have agreed to Youtube’s TOS ahead of time. Infringing content (that being illegally uploaded) is indeed a grey area, and I’d try to stay away from it- although you wouldn’t technically be infringing copyright if you played such clips, as the onus is on the uploader, not the viewer, to ensure proper usage. Still, be a good example to the kids, eh?