And a specific BUSD Board Policy proves it (BP 6162.6).
This is going to be a fun one during the next couple of months. That Tresona licensing firm in Arizona has a big decision to make soon about whether or not they should go forward with their music infringement case against the BUSD and that horrific BHS “glee” outfit. We think they should.
One troubling aspect of the trial judge’s ruling against Tresona was that Carroll supposedly had an inherent good faith belief that such use of Tresona’s licensed materials was a classic “fair use” allowance for educational purposes, and thus as a public employee he had well-established “qualified immunity” against such an action in court.
This Court finds that the copyright laws Carroll allegedly violated were not “clearly established…” This Court agrees with Tresona that copyright laws in general were firmly established in 2011, including the need for a license to create a derivative work, distribute audiovisual recordings of a copyrighted work, or perform a musical work in a dramatic fashion. See dkt. 89 at 15-22. However, the Court finds that “the contours” of these rights were not “sufficiently clear· [so] that a reasonable official would understand that what he is doing violates that right.” See Anderson v. Creighton, 483 U.S. at 639…
Use of a copyrighted work “is not an infringement of copyright” when used “for purposes such as … teaching (including multiple copies for classroom use), scholarship, or research.” 17 U.S.C. § 107 (emphasis added).… In this motion, the parties did not brief for the Court the issue of fair use, and thus the Court does not resolve whether fair use would be a successful defense on the merits. At this stage, the Court merely finds that since teaching is explicitly listed as fair use, a public school teacher acting in his teaching capacity would be reasonable in believing the fair use defense applies…
A couple of months ago we noted some very troubling aspects to this ruling above. So apparently did a specialized attorney at a popular school-use website:
Because of the unique procedural posture of the case, this opinion leaves even more unresolved the following critical questions:
· How broadly may individuals be insulated from personally liability for copyright infringement as “public officials”?
· Is the law really unsettled with respect to the need for obtaining a permission to arrange for performance by a band or choir?
· Why does an in-classroom fair use exemption have any bearing on separate concert activities?
Music publishers and performing arts groups will certainly be following this case closely, and, presumably, some of them may also be contacting their elected representatives in Congress to propose legislation clarifying these issues.
One of the reasons we flipped when we first saw this absurd ruling against Tresona was because we know how the BUSD always goes out of its way to warn its teachers and employees to never just use copyrighted materials freely in any school setting.
Here’s the Board Policy that proves it:
Any literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, audiovisual or motion picture, sound, architectural, or other original work shall be assumed to be a copyrighted work, regardless of whether the work appears in print, audio, video, electronic, or other fixed and tangible form.
Before reproducing a copyrighted material for instructional or other district purposes, a staff member shall determine if the material is in the public domain or if the intended use of the material meets the criteria for fair use or another exception pursuant to 17 USC 107-122. If the material is not in the public domain or no recognized exception applies, the staff member shall seek permission of the copyright holder before using the material.
The Superintendent or designee shall inform staff that inclusion of an attribution citing the author and source of a copyrighted material does not absolve the staff member from the responsibility to either obtain permission or satisfy criteria for fair use or another exception.
If a staff member is uncertain as to whether the intended use of the material meets the criteria for fair use or another exception, he/she shall take the safest course and seek permission from the copyright holder to use the material or, if it is impracticable to obtain permission, shall contact the Superintendent or designee for clarification and assistance.
Students shall not copy or distribute copyrighted works to others. Staff members shall take reasonable precautions to prevent copying or the use of unauthorized copies on school equipment.
In other words, there’s no automatic fair use right or presumption inherent to being a Burbank Unified School District employee. So not only does the judge’s inane ruling fail to apply to paid concert performances (a fact that copyright attorneys are aware of already), but all BUSD employees know damn well in writing to never presume fair use with any copyrighted materials.
The board’s own policies (and related administrative practices) prove that no one at the BUSD has a “reasonable belief” in anything but extreme doubt about all copyrighted materials. Those are their written instructions!