Copyright and You - A Brief Discussion

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Copyright and You

Troubleshooting

This is a general guide to the concepts of copyright. It is not the law itself, and it is not legal advice. It is current as of the year 2000. The law may have changed since then. For specific, up-to-date legal information, contact the Copyright Office or a legal professional.

You all know that you're not supposed to photocopy music (or any other printed publications). And you know you're not supposed to tape concerts or records or TV shows (you did  know that, didn't you?) Even when there are all kinds of nifty technological devices that enable you to do just the kind of copying you're not supposed to do!

It's always "no, no, no!", isn't it? It feels like you're being treated like a naughty child.

But did you know that copyright law actually benefits you? Yes,you,in the chair, there.

Copyright law allows you to exclusively own the music you create; to sell or lease exclusive rights to the work; to protect your intellectual property, either as creator or publisher. It makes mass publication and mass marketing possible. It creates an incentive to create new work, and makes possible the existence of music publishers and stores, libraries and schools. Broadcasting and recordings of music depend on the existence of copyright. And copyright provides for such things as residual payments and royalties for either writers or performers.

Copyright law is like having a hospital in your city. You may not visit it often, but it's really nice to have it there when you need it.

For those of you who compose, arrange, or record for part of your living, copyright is the single best thing that ever happened to your profession.

Basics

Copyright law is designed to protect your right, as the creator of original work or the interpreter of existing work, to profit from your efforts by selling the work itself, or copies of it, or rights to it.

Copyright is the right to make and distribute copies of a piece of intellectual property (music, writing, painting, sculpture, etc). Under current U. S. copyright law, all rights belong to the creator of an original work from the moment the work is created in tangible form (that is, on paper or on recording media). You can sell or license these rights, one at a time or all at once. The holder of the rights is entitled to exploit them for profit, and is also protected by copyright law.

What you can and can't copyright:

You can copyright any intellectual property you create in tangible form (that is, on paper, on tape, in stone, or some other physically real medium) including:

• Written or recorded music
• Visual art of any kind
• Writing of any kind
• A work derived from another existing work, e.g: "Songs
• on Poems of My Best Friend".
• Software
• And much, much more.

You can't copyright:

• An idea
• A title
• A word
• A method of doing something
• A logo or trademark
• Work you didn't create or pay for

The rights included in copyright are:

• The right to make, sell, rent, or distribute in any way copies of a given original work.
• The right to alter or make derivatives of a given work. Derivatives include arrangements, recordings, and excerpts.
• The right to perform a given work.
• The right to control (including denying) permission for use.
• The right to protect your rights to the work in court.

Work made for hire:

If someone hires you to create a specific work, and the contract between you stipulates that this is work made for hire, the owner of the rights is the person or company that hired you (and paid you) - not you. This is far more common than you might suppose.

OK, that's the basics.

In and Out of Copyright

What does "in copyright" mean? To you and us, it means several things:

• The copyright holder (owner) is the only one who has the right to make copies of a work.
• You need to obtain permission to perform a copyrighted work from the copyright holder - usually the publisher.
• You need to obtain permission to make a derivative of a work in copyright.

A work is "in copyright" from the moment of its creation until the legal term of protection expires. It then becomes, naturally, "out of copyright", or "Public Domain". When it's Public Domain, do whatever you like with it!

Copyright Date and Duration

Copyright is limited in time - it eventually expires, as do we all. The most fun and interesting part of copyright is determining if a work is still in copyright or not. (Actually, it's something you have to do, like it or not). The fun part is that copyright duration terms have changed numerous times - and will change again.

The simplest approach is to use the current standard of "Life plus 50" - that is, a work is in copyright from the moment it is fixed in tangible form (written) until 50 years after the composer's death. More specifically: if a work was created (and copyrighted) before 1978, the term of copyright is 75 years from the date of first publication. If it was created after 1978, the term is Life plus 50.

Another tip: if someone considers a work worth publishing and selling, it's probably in copyright. For example, Bach's own copyrights (if there were any) would by now have long ago expired; but editions  of Bach are most likely in copyright, and you may not copy them without permission. Always look for copyright date and editor's name.

Fair Use

Many people do not really understand the terms and intent of Fair Use. Fair Use is a legal term in the copyright law itself. It covers some of the situations in which reproducing a given work without permission could be considered "fair" - for example, criticism, teaching, scholarship, research, or journalistic reporting (not making a copy for personal use or to give to a friend). The extent of the "fairness" of use depends on whether you intend to use the copy for education (yes) or commercially (no); what kind of work it is; how much of it you use, and whether or not your use might damage potential sales. As a rule of thumb: if your use would prevent the legitimate sale of a piece of music, that use would not be fair.

For example, if you're discussing the life and works of a specific composer, you may reproduce some of that composer's work as classroom handouts, which are to be returned to the teacher at the end of class. You might be able to quote some of the work in a journalistic article.

If someone hands you a photocopy of sheet music outside a classroom, it may not be legal.

If you have any questions at all about whether your intended use qualifies as "fair use",ask.

Fair Use does NOT mean :

• "Well, I'm a student (or a musician, and therefore poor) and it's fair if I copy music for free until I make some money".
• "Everybody does it, so it must be OK".
• "I'm only taking a little piece of it".
• "It's just for my students (or my church choir)".
• "Hey, it's exposure for the composer -- lay off!"

Parody and quoting are special cases, and are judged on a case-by-case basis. They are NOT covered by the Fair Use clause per se. The rule of thumb is: do not do unto others what you would not like them to do unto you. They could sue.

Page Turns

While this is not explicitly covered in copyright law, it is general knowledge that in performance, page turns can be difficult or impossible. While publishers and copyists usually do their best to make page turns easy, they can't always; so it is considered more-or-less acceptable to make copies of individual pages of individual works for specific performances within reasonable limits. Once the performance is over, destroy the page copies!

Special Permissions for Sheet Music

1. Legal photocopy: in some cases, you may have programmed a piece that has gone out of print, and you were not able to determine this until you needed to order supplementary copies. If you already have an original, you can sometimes  obtain permission to legally make copies (or have them made for you by the publisher). There may be a fee for this. Note: if the work is in copyright, you MUST obtain permission from the copyright holder.

2. Late arrival of music ordered in good faith: Sometimes, it can happen that you've ordered music in plenty of time for your concert, and the music doesn't get to you in time. Usually this is because it's temporarily out of print. When your deadline is approaching, if the publisher cannot supply the original music in time, they may allow you to make copies to get you through the concert, on the condition that you destroy the copies you made when the good copies arrive or immediately after the concert, whichever happens first. Get permission - it isn't your guaranteed right to make copies, no matter what the circumstances!

Doesn't the price of purchase or rental of the music cover performance rights?

No. What you get when you buy or rent sheet music is the physical copies of the music itself - that is, the paper and the printing on it. For performance rights, you need to contact ASCAP, BMI, or other licensing agencies.

Licensing and Usage:

Licensing covers a broad range of activities or usages:

• Making copies
• Performing at a specific time and place
• Performing repeatedly
• Making derivatives (arrangements, recordings, and so forth)
• Broadcasting
• and much more.

If you are not the exclusive holder of rights in a copyrighted work, then you need to arrange for licensed usage and (usually) pay for it. See below for useful links to help you track licenses and obtain permissions.

Common practice vs. the letter of the law (or, Life Is Not Always Fair):

The law can't cover every possible situation. And real life is not always fair. You need to use common sense and discretion: for example, what if you're going to audition for a major orchestra, and they require that you prepare a piece that is in copyright but not available by sale, rental or even library loan, and nobody you know has a copy? They are supposed to provide you with a legitimate copy to practice from. On the other hand, this is the real world, and they may decide not to be interested in people who take up their time with "trivial" matters like this. And you really  want the job, so you don't dare complain. You want to do the right thing; but can you?

Another case: you want to perform a copyrighted work in a concert for which you will charge no admission (for example, a worship service). The performers are all volunteers, there will be no recording in any medium. Do you have to pay for performance rights? By law, the answer is technically "yes". But there may be exceptions. You need to ask.

Here's another good one: a work is in copyright, but out of print. For some incomprehensible reason, the publisher will neither release the rights nor reprint the work. We cannot figure out a good answer to this one, and we're in the business.

Rules-of-Thumb and Reality

Always check whether a work is in copyright or not; if you can't tell, assume it is .

Composers and publishers want their music to be performed, but they also want to be paid for it - or at least asked. If there's any question, always ask permission for any uses other than practicing. You would want others to ask you; and you may get usage for free, with thanks - isn't that worth it?

Lawsuits for infringement really have more to do with the extent of the damage and the amount recoverable than anything else; but don't expect to get off scot-free because the composer whose work you photocopied is unknown, or because you're a poor student without any money. Or because you're doing it for your church. Or because you're a free spirit. Do the right thing! It's the same idea as parking legally, even if you have to pay $5.00, versus paying a towing-company $100.00 to get your (damaged) car back.

Well, what about those greedy publishers making all that money for doing nothing?

The publishers among you are now rolling on the ground, laughing themselves sick over this idea.

Some few publishers do  make a lot of money, if they have some hits and some titles that sell really well over time. Most publishers are struggling right along with the rest of us.

Publishers have to pay for acquisition of rights, for editing, proofing, typesetting, engraving, layout, cover design, printing, binding, promotion, storage, transportation, returns of defective copies, inventory tax, and plenty more. After all these expenses, most publishers try to price their publications low enough that you, the musician, are willing to pay for them, and high enough so that they themselves don't go broke. Most of them work hard to produce high-quality publications, and they take the risk that any piece they publish might not sell at all after costing them plenty.

In short, they're in the same boat as you.

Copyright is political:

Copyright protects the owner of the rights in a work, who may or may not be the creator . Originally, the term of copyright was intended to be short - 14 years - so that the public would benefit from the release of intellectual property into the mainstream of free enterprise. The idea was that each new work could inspire further new developments, which might then give consumers more pleasure and creators more wealth. The duration of copyright has increased over time; the latest revision has extended creator copyrights to life plus 70 years, for example. While a modern composer of a few, somewhat academic works might get a few more dollars during that term, a major corporation with a popular piece of intellectual property could make billions  more with extended copyright. It is your right and your obligation to inform your political representatives of your interests in the scheme of things - like the major corporations do.

If you don't like the law...

Tell someone who can do something about it (like your senator, or your favorite talk-radio host). You do get to vote.

Further Questions

If you find you have questions regarding a specific work, you can get help from librarians, from the licensing agencies, from the publishers, and from the legal department of your school (if you're a student). You can also browse these Web sites.

• ASCAP(American Society of Composers, Authors and Publishers)
• BMI, a music licensing agency.
• Harry Fox, the licensing agency of the National Music Publishers Association.
• The Library of Congress
• National Music Publisher's Association This site contains extensive information on copyright, licensing, and royalties, as well as a search engine for songs licensed by the organization.
• SESAC, a performing rights agency.
• The U.S. Copyright Office.