To best position yourself to assert a fair use argument when using sound recordings, consider doing the following:

• Link to the sound recording if possible rather than making an electronic copy available to students. Linking to materials is ordinarily not a violation of copyright but rather a technological instruction for locating materials.
• If copying a sound recording, do not use any more of the recording than the amount needed to serve your purpose.
• Avoid copying sound recordings from materials created and marketed primarily for use in courses such as the one at hand (e.g. from a textbook, workbook, or other instructional materials designed for the course). Use of more than a brief excerpt from such works on digital networks is unlikely to be transformative and therefore unlikely to be a fair use.
• Make sure that the sound recording serves a pedagological purpose; do not use as entertainment.
• Place the sound recording in the context of the course, explaining why it was chosen and what it was intended to illustrate. Recontextualize the sound recording when appropriate through the addition of background readings, study questions, commentary, criticism, annotation, and student reactions.
• Limit access to the sound recording to students enrolled in the course.
• Use streaming or other technologies that limit students' ability to download, copy, or redistribute the material.
• Notify students that sound recordings are being made available for teaching, study, and research only.
• Provide attributions to known copyright owners of the sound recordings.

The examples below are intended to model the thought processes instructors should engage in when determining whether an intended use is fair given the particular facts at hand. A final determination of fair use can only be made in a court of law. This guide is not intended as legal advice. If you have legal concerns about a particular use at the University of Rhode Island, please contact the university's General Counsel.

Professor Grunow is teaching an online Survey of Music course that covers representative composers, genres, and works from the Medieval to the Postmodern eras of music history. In addition to surveying representative compositions, the goal of the course is to supply students with analytical and critical tools to develop a historically informed appreciation of music. Instead of using a standard textbook, Professor Grunow has posted online lesson narratives to Brightspace and plans to use the university's streaming media server to provide students with access to the assigned music. Each week, students must participate in structured online forum discussions in which they discuss and analyze the assigned music using musical concepts learned in the course.

Professor Grunow heads to the library to discuss whether or not it is okay to stream the full-length recordings of the compositions she has selected for the course. She presents three of her choices to the music librarian:

• Wolfgang Amadeus Mozart (1756-1791) — Piano Concerto No. 21 in C Major (K.467), performed by Murray Perahia and the Chamber Orchestra of Europe, recorded in 1991
• Ludwig von Beethoven (1770-1827) — Piano Sonata No. 32 in C minor (Op.111), performed by Claudio Arrau, recorded some time in the 1960s
• John Cage (1912-1992) — In a Landscape, performed by Stephen Drury, recorded in 1993-1994.

The streamed recordings will be available to students through Brightspace for the duration of the semester only. Only students registered for the course will be able to access the recordings, and students will not be able to download or copy them. Is this fair use?

Analysis

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

Yes, Professor Grunow's use is transformative, since she is using recordings originally produced for aesthetic purposes to educate students about music history and theory. The professor and the students are analyzing the recordings within their historical and musicological frameworks in a noncommercial educational context.

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

These compositions are creative works, and they were used in their entirety, which would tend to weigh against fair use. However, given that the use is transformative and takes place for educational purposes, the use is more likely to be fair.

Fair use: Yes.

Note: The transformative and educational nature of Professor Grunow's use of the recordings and the fact that access was limited to students enrolled in her class and that students could not copy or download the music support a fair use argument. This does not mean, however, that the copying of music to university servers in order to stream it to students will not be challenged by rightsholders.

UCLA faculty produced a strong statement of principles on the use of streaming videos and other educational content, asserting that "streaming technologies serve the purpose of time-shifting for students and faculty alike." They believe that "if it would be lawful for a teacher to show a particular piece of multimedia to students enrolled in a class that meets in a physical classroom, it should be fair use to permit the viewing or hearing of that multimedia, through time-shifting technologies, in a virtual classroom that restricts access to those same enrolled students."

In the 1984 case Sony Corp. v. Universal City Studios, Inc., the Supreme Court held that time shifting was fair use in connection to the noncommercial home recording of television shows for delayed viewing because it did not deprive the copyright owners of revenue.

An Issue Brief from the Library Copyright Alliance on the streaming of films for educational purposes presents an argument that could also apply to the streaming of sound recordings. The brief suggests that "courts are likely to treat as fair use many instances of streaming video to students logged in to class sites." The brief's authors write, "Courts likely would treat educational uses of entertainment products, such as uploading a feature film to a course website so that students could stream it for purposes of analysis, as repurposing" [i.e. as transformative use]. The brief goes on to suggest that "educators could buttress their fair use claim by recontextualizing works on course websites through selection and arrangement and the addition of background readings, study questions, commentary, criticism, annotation, and student reactions."

With regard to music, it is further worth noting that multiple copyrights apply: copyright in the composition itself and copyright in the sound recording. Sound recordings first gained federal copyright protection in 1972, however sound recordings from before that year are protected by state common law copyright. Thus, "almost all sound recordings, regardless of when they were made, are protected to some extent" (Peter B. Hirtle, Emily Hudson, and Andrew T. Kenyon, Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums, p. 53).

Professor Beretsky is teaching an online course about copyright. He wants to illustrate the provision of copyright law that pertains to compulsory cover licenses of music by demonstrating how cover versions may differ noticeably from original recordings. He extracted a 30 second clip from the recording of "Little Wing" by Jimi Hendrix and then about 15 seconds of the same song by Santana featuring Joe Cocker. He inserted the sound clips into his online lecture notes for the class, which he makes available on his personal website without access restrictions. In the text surrounding each sound clip, Professor Beretsky clearly states his purpose for including the song, explaining in detail the musical differences between the two pieces and what the significance of this is in relation to compulsory licensing. It is possible for students to download the clips. Is this fair use?

Analysis

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

Yes, Professor Beretsky's uses are transformative. The original purpose of the music was aesthetic and to entertain; Professor Beretsky's purpose for using the sound clips was to illustrate a concept in copyright law. The critical commentary in the professor's notes that surrounds each song clip helps to establish the transformative nature of the use.

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Because Professor Lee's use is transformative and he used only a small portion of each song—the amount necessary to illustrate his point—the material taken is appropriate in kind and amount, even though the songs are creative works.

Fair use: Yes.

Note: The fact that Professor Beretsky's lecture notes are freely available on his website does not in and of itself undermine his fair use argument. However, his use is more likely to be challenged by the rightsholder than if he had used a course management system like Brightspace to limit access to only the students in his class. Access restrictions are not a requirement of fair use, but they demonstrate a good faith intention to limit the use of the copyrighted material to educational purposes.

Professor Garcia teaches a survey course on American poetry with a focus on the 20th century. Most of the readings are drawn from the course textbook, The Oxford Book of American Poetry (Oxford, 2006), but she wants to supplement the required text with some additional material. She feels that it is important to hear poetry read aloud to get a full sense of its meaning and the poetic devices employed by the poet. She rips two poems from the audio CD The Voice of the Poet: Robert Frost (Random House Audio, 2003) and uploads the files on the course's Brightspace site for students to access. Students are able to download the files to listen to them. As a homework assignment, she asks students to first read the poems in their textbook and then to listen to the poet reading his poems. Students must then write a few paragraphs about how the experience of listening to the poems differed from reading them. Professor Garcia plans to have students discuss their experiences in the next class period. Is this fair use?

Analysis

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

Yes, Professor Garcia's use is transformative. The original purpose of the poems was aesthetic; Professor Garcia's purpose is educational: to have students compare and contrast their aesthetic experiences of reading and hearing the poems. The fact that students are asked to analyze the aesthetic experience of hearing the poems being read helps establish the transformative nature of the use.

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

The fact that the poems are creative and were used in their entirety weighs against fair use. But because Professor Garcia's use was transformative, and because listening to the entire poem was necessary for the purposes of the assignment, the material taken is appropriate in kind and amount.

Fair use: Yes.

Note: Professor Garcia's case for fair use would be stronger if she employed technological measures (e.g. streaming technology) to ensure that students could not copy and redistribute the digital file that she uploaded. This would demonstrate her good faith intention to limit the use of the copyrighted material to educational purposes.

Professor Gonzalez teaches an ornithology class that meets twice a week. The course covers identification, field study techniques, habitats, and the basic biology of birds. The professor uses Brightspace to post the course syllabus, lecture notes, and grades and to allow students to hand in assignments. One of the texts for the course is the National Audubon Society Field Guide to North American Birds: Eastern Region, Revised Edition (1994). This book will help students identify birds by sight, but not by sound. To help them learn to recognize bird calls, he copies short clips of bird calls from the Stokes Field Guide to Bird Songs: Eastern Region, an audio CD, and uploads the sound clips into his lecture notes in Brightspace. Each clip is introduced by a narrator who states the name of the species after which a variety of the bird's songs and calls are presented. While the CD includes recordings of the calls of 372 species of birds, Professor Gonzalez only copies the calls of 25 species, or under 7%. Is this fair use?

Analysis

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

No, Professor Gonzalez's intended use is not transformative. The original purpose of the CD is to teach people to recognize specific bird calls, and Professor Gonzalez is using the CD for the same purpose.

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

This CD is a work of nonfiction, which favors fair use. However, since Professor Gonzalez's use is not transformative, a fair use argument would be more difficult to sustain. The publisher of the CD could conceivably show market harm by arguing that Professor Gonzalez could have asked students to purchase a copy of the CD just as he had asked them to purchase the field guide.

Fair use: Probably not.

Notes: This example raises the question of what can be copyrighted. In order for a work to be copyrightable, it must be original, which implies a "minimum amount of creativity." In this case, the bird songs themselves cannot be copyrighted. The CD in question, however, is certainly eligible for copyright, since the authors compiled, organized, and introduced the bird songs and provided accompanying printed material explaining each type of bird call and its function. Instead of copying this material, Professor Gonzalez could have linked to similar content freely available on the web, for example the Cornell Lab of Ornithology's site All About Birds. The recordings on the All About Birds site are accompanied by a copyright statement, but by linking to the site instead of copying the content, Professor Gonzalez avoids the issue of copyright infringement.

Regarding the fact that Professor Gonzalez used only 7% of the CD, as explained in the Code of Best Practices in Fair Use for OpenCourseWare, "'Bright line' tests and 'rules of thumb' are not appropriate to fair use analysis, which requires case by-case determinations made through reasoning about how and why a new use recontextualizes existing material." Thus, while amount used is an important factor in whether any use is fair, fair use cannot be decided by relying on the specific percentage of a work used or similar guidelines.

Professor Lazarus is teaching an online course in the history of jazz. He wants his students to listen to the jazz standard "Tiger Rag" by Louis Armstrong as an example of Dixieland jazz. He copies the song from a CD of Armstrong's recordings that was released on Delta Records in 2002 and loads it onto the university's streaming media server. The streamed recording will be available to students through Brightspace for the duration of the semester only. Only students registered for the course will be able to access the recordings, and students will not be able to download or copy them. Is this fair use?

Analysis

A fair use analysis might not be necessary. "Tiger Rag" by Louis Armstrong is listed on a number of websites as being in the public domain. If this is the case, Professor Lazarus is free to use it without restriction.

However, determining whether a work is in the public domain with any certainty can be difficult and time-consuming. (For more information, see the "Use resources in the public domain" box on this guide.) Furthermore, according to Hirtle, Hudson, and Kenyon, "The only sound recordings that have entered the public domain through expiration of copyright are U.S. recordings published between 1972 and 1989 without proper notice of copyright. All other sound recordings are protected" (Peter B. Hirtle, Emily Hudson, and Andrew T. Kenyon, Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums, p. 54). 

Professor Lazarus need not risk a copyright violation by uploading a version to the streaming server or bother with a fair use analysis. The piece is freely available online in mulitiple locations, for example in the Internet Archive. He can link to it.