Off-Air TV Recordings

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  • We have a teacher that has used a video tape that she recorded off the air (broadcast TV) that includes various commerials. The project has the students view the commercials to analyze race, gender, age and other demographic information presented. Can she legally show those commercals? If so, how long can she keep the tape and who would she go to in order to obtain permission to legally present those commercial segments?
  • hbertsch,

    Although there are specific federal guidelines dealing with off-air recording (see this circular from the Copyright Office:, or if you don't like PDF, PBS offers a good explanation:, I think in this case, since there's probably no way to purchase the commercials that are being evaluated, you might want to apply the four factors of fair use.

    The four factors are:
    (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.

    Factors 1 and 4 definitely weigh in your teacher's favor. Factor 2 seems similar to 4 in this case, because the work is not sold. Factor 3 weighs against fair use, since pressumably whole commercials are used.

    You have to use your own judgement about this, but I would think that given the use is in the classroom for teaching purposes and there's likely no way to purchase the commercials, that the use is fair. [Note that despite that big red copyright mark to the left this is not actual legal advice!]

  • Adding to JMiller's response, I would also look to Section 110, "Exemption of Certain Performances and Displays" because it allows for:

    "performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made"


    As I understand it, under Section 110 your teacher's usage is not an infringement as long as s/he has met certain conditions:

    1. The copy was lawfully made (which a personal copy of a broadcast would be)

    2. The viewing of the tape takes place in a mediated classroom setting

    3. The school is accredited to teach the students

    A further note on Point #1: Last week, in a copyright workshop led by Dru Zuretti of the Copyright Clearance Center she verified that (in her opinion, of course) a personal copy of a broadcast is indeed a legally obtained copy of the work!
  • This may be redundant after the good info that JMiller and GClement have already passed on, but I hope it might also clarify things somewhat more. The teacher's use of this copyrighted material potentially implicates two of the exclusive rights held by the copyright owner: to make copies of their work and to perform their work publicly.

    The public performance that occurs when the teacher plays the videotape in her classroom is covered by the face-to-face classroom limitation that GClement describes (sec. 110). But sec. 110 only addresses the performance or display rights. The copying that occurred when the teacher made the tape from an off-air broadcast would have to be considered in reference to fair use (sec. 107), which both JMiller and GClement discussed.

    I agree with JMiller's opinion that the copying would most likely be covered under fair use--as she points out, among other things it would be hard for the copyright owners to claim any adverse market effect when commercials aren't typically sold as a standalone product.

    Besides, the copyright owners for these commercials are likely the corporations who commissioned them as "works for hire" from film production companies--and what corporation or advertiser in its right mind would object to broader distribution of its "message"--and to a captive room full of impressionable young minds, no less!

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