Copyright Law & Marching Arts: The School Concert Exemption

Over the past few months, I have had in depth conversations with WGI, DCI and DCA ensemble directors about Copyright Law and how the changing legal landscape is affecting the Marching and Pageantry Arts.   One of the main discussions is about when performing ensembles fit into the School Concert Exemption of the Copyright Act. 

Let's rewind: The Copyright Act (the "Act") is a federal law that regulates the rights of creators and the rights of third parties to use licensed (i.e. copyrighted) content.  The basic rule is that one cannot legally reproduce, perform or distribute the copyrighted work of another person unless: 1) you have obtained a written license from the rights holder to do so, or 2) your particular use fits into one of the exemptions contained in the Act.  

Note: For the purposes of this discussion, we are not going to talk into the Fair Use Doctrine, which is a subject unto itself. 

One of the exemptions contained in the Act is known as the School Concert Exemption

The Copyright Act at Section 110 has a provision commonly known as the “School Concert Exemption.”  This exemption allows for schools to present public performances of copyrighted material - in limited circumstances - without committing an infringement.  Of course, the schoolmust comply with the rules of the School Concert Exemption in order to be protected.  

One should read this provision very closely.  The Act refers to the exemption applying to schools.  There is little, if any, guidance to indicate that WGI, DCI or DCA ensembles constitute a "school" for the purposes of the exemption, even if the ensemble's by-laws and articles of incorporation state that the ensembles mission is educational in nature.  

In an abundance of caution, WGI, DCI or DCA ensembles should assume they are NOT covered by this exemption. 

The School Concert Exemption provides that school ensembles can present a performance of a copyrighted non-dramatic literary or musical work at a school concert provided that there is no economic component whatsoever.  

In other words, the performance must be completely free to the public.  There can be no admission charge, and no fee or compensation can be paid to the performers, promoters, or organizers.   There is also an exception to this rule, in that if there is an admission charge, all proceeds must be used solely for educational, religious or charitable purposes. 

The performance cannot proceed if the copyright owner provides a written objection seven (7) days prior to the performance.

For any questions on this or any other issue affecting your performing ensemble or nonprofit organization, please contact me