Can You Own a Sound?
From Copyright Criminals collection, lesson plan 2 of 4
(90-120 min + assignments)
Purpose of the Lesson: Copyright law developed over time to protect intellectual property of artists and creators. As sampling in hip-hop grew into both a cultural and economic force, the music business evoked copyright laws to protect the recordings they own. This lesson looks at the ways that artists borrow and appropriate in the creative process across mediums. Students will take a look at the issue from both sides and debate whether or not “copying” should be allowed.
- Learn about copyright law and the exception of fair use.
- Investigate artistic appropriation in visual art, film, and literature, as well as in music.
- Prepare and present a debate with their classmates.
Stating and supporting opinions in class discussions and in writing; analytical reading and viewing; note taking; interpreting information and drawing conclusions; critical thinking; identifying cause and effect; identifying relationships and patterns; creating various forms of media
- Computers with Internet. LCD projector or DVD player
- Copyright Criminals Discussion Guide
- Copyright Criminals Film Module 2 “Can You Own a Sound?”
- Whiteboard/markers, or chalkboard/chalk
- Student Handout A: Module 2 Note Taking Guide
- Student Handout B: Quotes
- Student Handout C: Debate Roles & Format
- Student Handout D: Debate Notes
- Student Handout E: Debate Peer Evaluation Rubric
Note to Teachers: For your own background information and preparation, there are good reference primers for copyright law and fair use on the Teaching Copyright website and in the article “Copyright for Educators” on the KOCE (PBS) website. You may want to give additional “intro” lessons using these materials if your class needs more background and context.
Recommended National Standards
Mid-Continent Research for Education and Learning Standards
Standard 6. Understands how the legal system affects business
Standard 34. Understands the role of ethics in the business world
Standard 3. Understands the sources, purposes, and functions of law, and the importance of the rule of law for the protection of individual rights and the common good
National Council For The Social Studies
V. Individuals, groups, & institutions
V.a. Apply concepts such as role, status, and social class in describing the connections and interactions of individuals, groups, and institutions in society;
VII. Production, distribution, & consumption
VII.b. Analyze the role that supply and demand, prices, incentives, and profits play in determining what is produced and distributed in a competitive market system;
VIII. Science, technology, & society
VIII.a. Identify and describe both current and historical examples of the interaction and interdependence of science, technology, and society in a variety of cultural settings;
X. Civic ideals & practices
X.d. Practice forms of civic discussion and participation consistent with the ideals of citizens in a democratic republic
International Society for Technology in Education
Standard 5: Digital citizenship
Students understand human, cultural, and societal issues related to technology and practice legal and ethical behavior
David Maduli is an independent educational consultant who has contributed many curriculum guides and conducted various workshops for PBS programs. He has a master’s in teaching and curriculum from Harvard Graduate School of Education and continues to work as a veteran Bay Area public school language arts and social studies teacher. He is also a DJ and a writer.
Introducing Copyright Law & Music: Ask the class if it is anyone’s birthday. If not, ask who will be having a birthday soon. Invite the class to sing “Happy Birthday to You.” After singing, read the articles “How Long Do Copyrights Last?” and “The Copyright Term Extension Act of 1998” from the Sampling Law website to the class. Have students respond to the following:
- I was/was not surprised to hear that “Happy Birthday to You” is copyrighted because…
- The composers of the song should/should not receive royalties because…
- Anyone should/should not be able to sing and use this song for free because…
Borrowing vs. Stealing: Have students read “Something Borrowed” by Malcolm Gladwell from The New Yorker website. (Note: “The ecstasy of influence: A plagiarism” by Jonathan Lethem can be used as an additional reading with similar arguments using different examples).
Discuss the following with the class:
- Gladwell gives many examples of artistic appropriation, from literature to journalism to music. Do you agree that many artists borrow as a fundamental part of the artistic/creative process? Should artists have the freedom to do so?
- Gladwell makes a distinction between borrowing that is derivative versus borrowing that is transformative. Is one wrong and the other right? How can we tell the difference and who ultimately determines that?
- What other examples of artistic appropriation can you think of?
The Fair Use Exception: Instruct students to read about fair use as related to borrowing from copyrighted works on the Sampling Law website. Discuss and clarify what fair use means and what is deemed fair use. Introduce the case of the Associated Press vs. Shepard Fairey, the artist who created the iconic Obama “Hope” poster which became ubiquitous during the 2008 Presidential campaign. The AP filed a lawsuit against Fairey claiming copyright infringement because he used an AP-owned photograph as a reference. Have students read and refer to this op-ed piece from The Huffington Post which includes references and visual examples from other cases such as Blanch vs. Koons. Fairey also speaks about the case on his own website. Take a quick thumbs-up/thumbs-down poll to find out if the class thinks that Fairey did indeed infringe upon the AP’s rights to the image he used.
Discuss the following with the students:
- If you would find Fairey guilty of copyright infringement, explain why.
- If you would judge Fairey’s poster as falling under the fair use exception, explain why.
- Should Fairey have given credit to the photograph he referenced when he first distributed his poster? Why or why not?
- Should the AP pursue the lawsuit even if the photographer himself does not see Fairey’s use as illegal? Explain.
- Should the AP and/or the photographer be compensated for the use of the photograph as a reference? Why or why not?
- Is there any difference between a visual artist using a photograph for reference and a musical artist using a sample of a sound recording?
Provide Background Information on Copyright Criminals: Briefly introduce the film Copyright Criminals. Note how the film module will cover how artists have referenced and appropriate other works in music, visual art, and film. Have students read and discuss Copyright Criminals Discussion Guide page 2, which features the filmmakers talking about how they encountered and dealt with copyright issues in creating the film itself. There is a related interview with the filmmakers on the Independent Lens website. Have them also read “Copyright Overview” and “What is Fair Use?” on page 4 of the Discussion Guide.
Viewing the Film:
Viewing the Film Module: Instruct students to take notes on Student Handout A: Module 2 Note Taking Guide as they view the Copyright Criminals Film Module, recording the views of the different speakers in the module. After watching, give students time to note whether the speaker is for or against sampling and other forms of artistic appropriation.
Reflecting on the Film:
Review and Discuss: Debrief the module and notes by discussing them together as a class. Have students review the Student Handout B: Quotes before the discussion. Use the following guide questions:
- Should sampling someone else’s music — even one note — without permission be an offense suitable for criminal prosecution? Why or why not?
- Who do you agree with the most in the film module? Who do you most disagree with? Explain.
- How did the early cases of sample lawsuits in the 1990s change the way hip-hop producers approached sampling in subsequent decades?
- How is race involved in the sample clearance/copyright industry?
- What is a fair rate to charge for sampling someone’s music with permission?
- Should sampling be treated differently from covering a song in terms of copyright law and clearance? Why or why not? If so, how?
- What, if any, are the exceptions for when “copying” is acceptable?
Debate Preparation: Review copyright law and fair use with the class and explain that the students will debate whether artists should have the ability to “borrow” freely in the process of creation. Organize students into groups of four to six, with groups being either “PRO” artistic and creative freedom or “CON.” The “PRO” side can also refer to the Independent Lens interview with legal scholar Larry Lessig and both sides can benefit from the Independent Lens “Learn More” page. Distribute and review Student Handout C: Debate Roles & Format and have groups decide each member’s role(s). Then, direct groups to prepare their arguments and statements using Student Handout D: Debate Notes. They should research and prepare examples to support their side: from the film or readings, or from further research.
Assignment - Debate: Arrange the classroom into a debate-audience format with two sides facing each other in front of the rest of the class. Review the expectations with the criteria outlined on Student Handout E: Debate Peer Evaluation Rubric. Moderate the debate by following the debate format. Debrief by discussing the persuasiveness of the arguments and whether or not there can be a compromise or a way for the system to allow and encourage creativity, while at the same time protecting the rights of the creators.
Direct students in the audience to assess their classmates in the debate groups using Student Handout E: Debate Peer Evaluation Rubric. You can also use the same rubric to do a teacher evaluation of the debate groups.
Host a round-table discussion with individuals who are local resources on the subject of copyright: artists, musicians, lawyers, musicologists. Prepare questions and record responses from these “experts.”
Using visual art, music, literature, or other areas of artistic expression, create a piece that draws from and appropriates an existing work. Have the artist explain their intentions, how it differs from the referenced work, how and why they used the previous work, and how their experience was in creating the work.
Research the current state of copyright law. What groups or organizations want stronger copyright and intellectual property laws and why? How are they going about their cause? On the other side, what groups or organizations want greater artistic freedom within the law? How are they fighting to get it?
Research and prepare a presentation of artists who have referenced or appropriated other art in their works.Have the class evaluate whether or not the works are transformative or derivative. The class could develop criteria to make such a determination.
Research the creativity, legality and value of the DJ “mixtape.” Good starter articles include this piece on the RIAA raid of the Atlanta studio of DJ Drama in 2007 and this piece on “artist mixtapes” as a means to break into the industry. A good resource for a wide range of DJ mixes is Mixcrate.
Can You Own a Sound?