Music Law: Crimes, Cash, and Copyright

By Kevin McNamara

The law is a funny thing. On the one hand, it serves to bring order and promote justice and civility in our society. On the other hand, written laws and regulations are often viewed as being so thick and complex as to be completely unintelligible. As music educators, we can obsess about tone, rhythmic precision, and how in the world we can get our back stand cellist to play his forward extensions in tune, but we may not care about all this legal mumbo-jumbo.

Regardless of the preconceptions that we might have concerning these matters, we live in a society that is governed by laws and regulations, and, as music educators, we need to recognize where some of the significant problem areas may lie for us. Given the potentially significant consequences, music educators who work so closely with students would do well to consider what department policies and/or personal professional practices should be put in place to protect themselves from facing the kinds of scenarios that people normally think would never happen to them. The following article is not meant to be an exhaustive treatment of the subject, nor is it meant to drive you to paranoia regarding your every professional practice. It is meant, however, to encourage you to think about some of the more intuitive and fundamental ways in which you can heighten your level of professionalism.

Crimes

I am saddened whenever I see a teacher’s face splashed all over the media after allegations of misconduct with his or her students. Now, you don’t need an attorney to tell you not to have sex with your drum major, but what about the mere allegations of misconduct? What would prevent a student from making any sort of false allegation? If the allegations can pass the initial “smell test,” what effect could it have on career, family, and reputation, even if eventually exonerated? Contemplating such “what if” questions is the job of an attorney. In this regard, thinking about the situation from the point of view of a prosecuting attorney can be helpful.

There are variations in criminal law from state to state. However, it not unusual to have a prosecutor charge an individual with a number of offenses based on the circumstances. Each of these offenses carries with it a set of elements, many of which will overlap. In this regard, inappropriate physical touching or fondling coupled with the appropriate mental state (in other words, “knowingly” or “intentionally”) may be sufficient to support certain charges. As such, teachers should be thoughtful with respect to physical contact with their students. Under Federal Rule of Evidence 406 (and many corresponding state rules of evidence), evidence of habit or routine is admissible, which could potentially support the notion that alleged inappropriate physical contact was, in fact, appropriate, non-evasive contact, and was a part of the teacher’s professional habit or routine. For example, as an orchestra teacher, it was common for me to correct bow hand shape and left wrist position by physically shaping the student’s hand on the instrument. In many instances, I would ask permission of the student before touching them. Additionally, I developed an efficient manner of correcting problems using minimal physical contact, which I used consistently. The contact was directed specifically at the issue that I was clearly intending to address. Namely, I didn’t rub a student’s back when correcting their bow hand.

Of course, the best way to protect yourself is to never allow yourself to be in a circumstance in which such inappropriate behavior is even theoretically possible. In this regard, it has not been traditionally required that the testimony of an alleged rape victim be corroborated to support a conviction. However, some states have now begun to require corroboration of victim testimony. Irrespective, teachers should not permit themselves to be alone with a student. Since many of us have built positive relationships over the years with some of our students, it can be easy, at times, to adopt a more personal and less professional demeanor. However, we must put clear boundaries in place for ourselves within which such positive and personable teacher-student relationships can safely thrive.

Cash

One of the less exciting realities of being a band or orchestra director is fundraising. Here, potentially large sums of money go through our hands, both during collecting and in spending these funds. In many cases, directors are accessing multiple accounts involving school corporation accounts and booster accounts. Moreover, booster organizations may or may not have the types of accountability measures in place to adequately guard against possible embezzlement. Unfortunately, many hard-working and dedicated booster organizations have horror stories regarding a dishonest director or booster treasurer who brought home the spring concert donation jar containing $350 and ended up “counting” and depositing $250 into the booster bank account. Of course, this example is rather tame compared to the more dramatic stories of tens of thousands of dollars embezzled by more brazenly dishonest directors, booster presidents, or treasurers. So what should you, as the director, do to guard against such things?

Of course, there is no substitute for good accountability and financial recording practices. By way of just one example, cash donations and/or concession stand receipts should be counted by at least two people who are not the treasurer. The two counters should have a form to submit with the money counted indicating their names, the date, the amount counted (which should, of course, be the same for both counters), and should include a place for them to authenticate the form with their initials and/or signatures. However, in addition to following good practices like these, it is helpful to consider what evidence is needed to prove theft and what evidence is needed to refute allegations of wrongdoing?

In this regard, People v. Hostettler, No. C062232 (Cal. App. 5/18/2010) provides a great example of why it is important to record and preserve good meeting minutes at your periodic booster meetings. In this case, a booster treasurer was suspected of embezzling money from booster accounts. The boosters hired an accountant to review their financial records and contacted the local police to investigate. Upon review of the records, the accountant was able to identify over $58,000 that could not be accounted for. However, there was additional evidence presented that the defendant-treasurer had reported at previous booster meetings that the organization had a multiple bank accounts, one of which had a balance of $6,085, which had been seized by the IRS in connection with the booster’s failure to file taxes for several consecutive years. Four booster members testified to this effect and copies of the meeting minutes were submitted to corroborate the testimony. Interestingly, during the financial records review, the accountant could not confirm the existence of any bank account with a balance of $6,085. Further, when the accountant called the IRS to inquire about the account, the IRS had no knowledge of any such investigation or account seizure. It was thus determined that the defendant-treasurer had embezzled the $6,085.00 and fabricated the report of the seized bank account to mask the theft. Based on the information in the court’s opinion, however, it seems entirely possible that the theft of this $6,085 may have evaded detection had the false report not been recorded in the meeting minutes. In this regard, it is easy to speculate that she may have, in true fact, embezzled much more than the $64,000 that was identified.

This story serves to illustrate the importance of good record keeping throughout the organization. It is all too easy for booster organizations to be casual in their policies and practices under the assumption that “nobody here would do that,” or “we’re all here for the sake of the kids.” While we certainly hope that such is the case, as the teacher/director, it is, ultimately, your program. As such, you should take it upon yourself to make sure that proper accountability measures are in place for the protection of yourself, the kids, the program, and the organization.

Copyright

No article addressing legal issues for music educators would be complete without a discussion of copyright law. Here, the Education Fair Use Exception of the copyright law provides a perfect example of what I described at the outset as written laws being so complex and amorphous as to be virtually unintelligible since it provides no clear parameters of what is or is not “Fair Use.” Rather, this section of the code provides four vague guidelines to assist courts in determining if a copyright violation has occurred. Specifically, section 107 of the copyright code states, in part:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Unfortunately, after reading these four factors, music educators (and attorneys, alike) are left scratching their heads wondering what in the world it means. We are left wondering, “Can we copy this or not?” In this regard, various professional organizations, such as the Nation Association for Music Education (NAfME) have published recommended guidelines. These guidelines are helpful. However, such guidelines do not carry the weight of law and their use has been criticized by some legal scholars.

So what are music educators to do? Can we copy music or not? The answer is, “It depends.” Unfortunately, I will suggest that the Educational Fair Use Exception does not provide the kinds of practical solutions that many would hope. Specifically, I am referring to the practice of photocopying parts for your student band or orchestra performers. Here lies a real dilemma.

On the one hand, if the set of parts you purchased has three Flute I parts and three Flute II parts, and you make enough copies to accommodate the 36 flutes you have in your combined 7th and 8th grade band, that would likely be considered a violation of the copyright. However, what if you had seven flute players in your band? Could you pass out the six published copies and make one photocopy? Strictly speaking, some would say, “No. Even a single copy of a fully performable portion of the music constitutes a violation of the copyright.”

However, let’s apply the factors to this situation. In our scenario, this is clearly nonprofit educational use and would likely weigh in favor fair use under the first factor. Given the creative nature of musical compositions, the second factor will most likely tend to weigh against fair use. Copying a complete part, as opposed to a short excerpt, will likely tend to weigh against fair use under the third factor. Finally, one could argue that the potential market for the piece is minimally affected, thus, weighing in favor of fair use under the fourth factor. Consequently, we could have two factors in favor of fair use and two factors weighing against fair use. However, the relative weight applied by the court to the various factors may be difficult to predict. As such, we always advise to err on the side of caution and seek permission from the copyright holder.

In any case, the above scenario serves to illustrate how amorphous this area of the law can be. Additionally, while it may be fascinating to consider different hypotheticals, it can be infuriating to a director who is simply trying to be ethical and legal in her professional practices.

This article is the first installment in an ongoing series addressing possible legal issues that can arise within the field of music education. I hope to have sparked your thinking, inspired conversations with colleagues, and encouraged a higher sense of legality, ethics, and professionalism within the field of music education. If there is a particular area of concern or interest where music education meets the law, I would be happy to hear about it. Email me suggestions for future topics of inquiry or coverage at [email protected].

Kevin T. McNamara taught middle school and high school orchestra for 12 years in Indiana prior to transitioning to the practice of law. He has a master’s degree in orchestral conducting from Northern Illinois University and a doctor of jurisprudence degree from the McKinney School of Law in Indianapolis. He now works in a private law practice focusing on Education Law, Nonprofit Law, and Estate Law. He is available for speaking engagements and consultations. Contact Kevin directly at [email protected].