Every year, some of our schools schedule student talent shows as fund-raisers. Among other things, our students sing pop songs, play musical compositions, read poems, and perform skits. Do we need to obtain permission from the copyright holders before they perform these works?

—Jerilyn Van Leer, department supervisor
West Hartford (CT) Public Schools

Section 110(4) of the copyright law provides a specific exception to the exclusive right of public performance for many live performances. So it’s not necessary for your kids to seek permission. (But there’s an exception to the exception! We’ll get to that in a moment.) As long as the performances aren’t conducted for commercial purposes and the performers aren’t paid, it’s not necessary to obtain permission. You can also charge admission, as long as the proceeds go to a charitable cause, such as a school fund-raiser. Unless the rights holders contact the school seven days before a performance and insist that their works not be performed (which is really kind of weird and unlikely), you’re good to go.

Here’s the exception to the rule: students can perform only “nondramatic literary or musical works.” These are works without a narrative or plot. Although making a speech or reading a published poem aloud is fine, acting out a scene from a play is not. Singing a song is also fine, unless it’s part of a scene from a musical or an opera. For those works that have a dramatic element, it’s necessary to obtain permission even if you’re not charging an admission fee. Permission for a dramatic literary performance often can be obtained from the appropriate publisher. Performances of dramatic musical works usually require permission directly from the rights holder.

There’s another way to approach this situation. You could always evaluate whether each performance is a fair use (Section 107) by applying the four fair-use factors. In your situation, performing only one scene from a play may be a fair use, since you’re a nonprofit school that plans to use only a small amount of the work—plus, your performance will have very little effect on the market for the work.

One of our special ed teachers is thinking of using a Kindle with her students. What copyright restrictions should she be aware of? Also, after she’s purchased an ebook, is more than one student at a time allowed to read it? Can she download the book onto a PC, so that one student can read it on the Kindle while another reads it on a computer?

—Annalisa Crews, NBCT, library media specialist
Homewood (AL) High School

Kindles, Nooks, and ebooks are all governed by the terms of use, or license, that one agrees to prior to purchasing the product or content. For instance, before you can download a song from iTunes, you must agree to its terms of use by clicking “OK.” Most people don’t take the time to read these contracts, but many include phrases like “upon your payment of the applicable fees, we grant you the following rights solely for your personal, noncommercial use” (emphasis added). This description implies that all other uses are forbidden, including educational uses. Since we’re not given the option of negotiating the terms of use before we purchase these products, many people argue that these “click on” licenses aren’t legally binding. As you probably know, violations of these contracts happen all the time without any legal consequences. Lots of schools and libraries are using Kindles for educational purposes. But technically, these uses are contract violations.

Your special ed teacher can either abide by the terms of the license, take a chance that she won’t get into trouble if she overlooks its conditions, or get in touch with the vendor. I like the last option, but it’s problematic because the vendor will probably ignore her request. Or she may end up talking to a company employee who doesn’t have the power to negotiate contract terms. One would think that the Amazons and Barnes & Nobles of the world would offer an educational license with terms favorable for schools, but to the best of my knowledge, that hasn’t happened.

Carrie Russell is the American Library Association’s copyright specialist. Send your questions for Carrie to slj@mediasourceinc.com, with “copyright” in the subject line. Be sure to include your title and the name of your school or public library. Note: Carrie’s comments are not to be considered legal advice.