Publishing recordings of student performances

Q – Students in my language class are doing performances of plays and recitals of poetry that are being recorded. May I place these recordings where students in the class can watch them repeatedly to help reinforce the learning? Can I put them on the open Web to showcase my students’ talent?

This is a fairly complicated question, since it involves four separate elements.

First there is the issue of when the material being performed was published. Anything published before 1923 is in the public domain and can be performed, recorded and distributed freely. After 1923 there is a complex set of rules (see chart here) that determine whether something is still in copyright protection. Although much material published between 1923 and 1963 has in fact passed into the public domain, for simplicity sake we will assume here that such material is still protected.

The second element to consider is the genre of the material. The TEACH Act, which makes transmission to students in the class possible, distinguishes between performances of dramatic and non-dramatic works, with the former subject to more limited use. When the TEACH Act applies, only limited portions of a dramatic performance can be transmitted, while all of the performance of a non-dramatic poem, for example, is permitted.

Next is the issue of to whom the transmission is made available. If only students registered for the class can view the recordings, the TEACH Act applies. This means that we can use material that is protected by copyright as long as the specific requirements of that law are met. When the general public is the recipient, however, there is no exception that is likely to allow transmission of a performance of a protected work, so permission would be necessary. Performances of works no longer in copyright can be transmitted freely to either group.

Finally, it is necessary to be concerned about the privacy of the students whose work is being recorded. Those students have a right to protect the privacy of their educational records, including a recording of their classroom work. Although transmission to other students in the class probably does not endanger this privacy, if performances are available to the general public it is necessary to get a signed release form from each student whose work is recorded.

This chart provides a schematic overview of the various possibilities:

The general message to be gleaned from this analysis is that it is quite possible to use recordings of student performances, even on the open Web, provided that material is carefully selected and the students and the uses are planned for in advance.