From: "Smith, Kevin L" <[log in to unmask]>
Date: Sat, 24 Aug 2019 14:46:46 +0000

The question really has several parts.



First, the performance itself is likely a public performance, which
implicates one of the exclusive rights held by the copyright holder.  But
it sounds like the performance took place in a teaching situation, so it is
likely permitted by the exception to the public performance right for
face-to-face teaching.



Another question is what was performed.  If it was music, and the campus
has blanket performance licenses from the major collective rights
organizations like ASCAP and BMI, the performance, of course, but likely
also the recording, may be permitted.  If something not covered by any
campus license was performed, the recording and the (very limited)
distribution would have to be justified by fair use.



Based on the limited facts we know, I think the fair use argument might be
pretty solid.  Presumably the purpose was non-profit and educational, and
the potential impact on the market for the original would be negligible.
The second and third factors might count against fair use, but courts tend
not to weigh them as heavily as the first and fourth in most situations.



As with all fair use situations, this is a matter of judgment; if I were
the instructor, I would be comfortable doing this, subject to all the
things we do not know about the material used and the circumstances.
 Others might not be.  It is also helpful to remember, with fair use, that
if you change the facts, you change the outcome.  For example, if the
student posts the recording of her performance to a social media platform,
the analysis would be different.  Especially true if she is performing the
latest Taylor Swift song, to take just one example (why, by the way, am I
being bombarded with ads for Taylor Swift’s new album?  I have never bought
her music.  Never.)



If I may, here is a related shameless plug – ALA Publishing will soon
release “Coaching Copyright,” edited by Erin Ellis and me.  The first
chapter, which I wrote, walks readers through a five-question framework to
analyze any copyright issue.



Kevin






From: "Sherwood, Ms. Jennifer" <[log in to unmask]>

Date: Fri, 23 Aug 2019 18:40:56 +0000

Happy Friday everyone!



Here is my question. Is a faculty member allowed under copyright exemptions
to provide a student performing a copyrighted work, a copy of their
performance?



[image: Title: Tarleton State University]*Jennifer Sherwood*

Assistant Director for User Services, Tarleton Libraries
Tarleton State University, Member of The Texas A&M University System
Box T-0450 | Stephenville, TX 76402
254-968-9248 | www.tarleton.edu/library
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