Pandora, Grooveshark and the Copyright Police

Karen recently got the chance to visit with the ESU 10 New Teachers’

Academy and one of the topics she addressed was the need for educators to

be aware of copyright law. In brief, she emphasized that copyright laws

protect any original, tangible work and that the educational “fair use”

doctrine is not a license for educators to use copyrighted material at will. In

response to that presentation, many of the educators (both new teachers

and their mentors) asked: Is it a fair use to stream music and playlists

from services like Pandora, Spotify or Grooveshark as background

music in the public K-12 classroom? The short answer is: probably

not. (Sorry!)

Pandora and Grooveshark do not distinguish between non-profit and

business uses. Therefore, playing these services as background music in a

non-instructional classroom use would most likely be deemed a public

performance requiring licensing. It may seem unlikely the copyright police

are going to come storming in and arrest teachers for playing their Spotify

playlists. However, one of Karen’s first cases (many, many years ago) was a

copyright infringement action against a small, rural Nebraska hospital for

playing the local radio station over their sound system.

The copyright law is found in Title 17 of the United States Code. Section

110(2)(B) provides that teachers can use copyrighted movies, music and the

like for free if "the performance or display is directly related and of material

assistance to the teaching content of the transmission" -- that is, you are

teaching something about the media being presented. Good examples of

this exception would be using snippets of copyrighted songs to discuss

composition styles in a high school music class, or Bobby’s class

presentation in high school where he (very successfully) argued that Vanilla

Ice totally ripped off Queen and David Bowie’s “Under Pressure” for the intro

to “Ice, Ice, Baby.”

We are aware that there are a number of studies which show that

background music has beneficial effects on general education and cognition.

However, we do not think this generalized benefit meets the “directly

related” test in section 110. Unless you are evaluating the eccentricities of

Lady Gaga, we doubt you can succeed in arguing that playing Pandora in the

classroom qualifies as “fair use.” The same problems exist if you’re blasting

“warm up” music before basketball games or putting music in a graduation

slideshow—two very common questions we receive on this topic.

We certainly don’t enjoy our role as the “fun killers” for public education.

However, we also need to be clear with educators about their potential legal

liability for copyright violations. Over the past several years numerous

schools have been challenged for their unauthorized use of copyrighted

materials. In the vast majority of those cases, the school ended up paying

some amount to the copyright holder to resolve the dispute.

If you have questions about copyright law in general or the specific of the

“fair use” doctrine, you should consult with your school district’s attorney or

call Karen, Steve, or Bobby.