’11 Spring Issue
Copyright … What does it mean?
If you’re a school music teacher, you have probably copied music. But what was your motive? A kid lost the only copy? You forgot the book for the judge? There are too many saxophones in the section? So you’ve copied more than once … but is it legal? Unless you’re a litigation lawyer, it’s probably not feasible to memorize all the statutes of the copyright law, but you should be familiar with the basic rulings that affect music programs.
The term “copyright law” is often bandied about without knowing what it actually means, or the legal implications for your band, choir, orchestra or school. Copyright, literally “the right to copy,” applies to the photocopying of printed music. But there are also copyright restrictions that pertain to extracting portions of music for auditions, copying music for accompanists, rehearsal recordings, public performances, and performance recordings.
You ask yourself, does it really matter? Does anyone ever get caught or prosecuted? The answer to both is yes. But perhaps more importantly, you, as a music educator, have an opportunity to teach respect for the composers, lyricists, authors and publishers of copyright protected works whose livelihood is directly effected by your actions. In addition to maintaining ethical standards, music educators serve as role models for their students on a daily basis.
Exclusive Rights of Copyright Holders
(the things that require permission)
- The right to reproduce the work in print or recording. Copies in any form are prohibited.
- The right to public performance of the work. School concerts on school property are not violations.
- The right to prepare derivations from the work. Arrangements require permission.
- The right of public distribution. Including excerpted sections or recordings.
Duration of Copyright
Works published between 1923 and 1963 = 95 years (only if renewed).
Works published between 1964 and 1977 = 95 years.
Works published after 1977 = life of the author plus 70 years (multiple authors, 70 years after the death of the last surviving author).
Works published before 1923 are public domain and are free to copy. However, if you plan to copy or record a piece of music in the public domain, but you are using a recently published version, permission is required.
The “Fair Use” Mystery
You’ve probably heard “But, it’s Fair Use” as a reason to extract, duplicate or perform music. By statute, “Fair Use” is a limitation on the rights granted under U.S. Copyright Law:
The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.
Title 17 of the United States Code § 107.
Limitations on exclusive rights: Fair use
Specifically, statute stipulates that duplicating copyright protected materials for academic purposes (including multiple copies for classroom use at one copy per student) may not exceed 10% of the original source document.
Fair use does not exempt recordings that are distributed without charge; nor does it exempt copies from “consumables” such as workbooks, exercises, published tests, or answer sheets. The distinction between “Fair Use” and infringement is often unclear and it is advisable to err on the side of the copyright holder or consult an attorney.
Any arrangement of a copyrighted musical work made without permission of the copyright holder is an infringement of the copyright law.
Assigning or rewriting parts for different instruments or voicings is acceptable as long as it doesn’t represent loss of sales and you have purchased the original in the same numbers for which you are making changes or rewrites. You may also edit a copyrighted work as long as you don’t distort the fundamental character of the piece.
Face-to-face performances are exempt. School concert performances are exempt if there is no admission charge or commercial advantage to anyone. School concerts may not be exempt if a guest soloist is hired to perform.
Dramatic works, including musicals, are not exempt. Elementary musicals generally do not collect performance fees. However performance scenes, condensed version of a musical, or choral medleys from a musical are an infringement of the copyright.
It is permissible to record one (1) copy of a concert performance for archival, rehearsal or evaluation purposes. However, permission is required to make copies from each copyright owner for each piece of music performed, whether you sell or simply distribute at no cost. Statutory mechanical rates are based on performance time elapsed.
9.10 Cents per copy for songs 5 minutes or less or
1.75 Cents per minute or fraction thereof, per copy for songs over 5 minutes.
5:01 to 6:00 = $.105 (6 x $.0175 = $.105)
6:01 to 7:00 = $.1225 (7 x $.0175 = $.1225)
7:01 to 8:00 = $.14 (8 x $.0175 = $.14)
Computers, Software and the Internet
Copyright rules for technology applications are basically the same as for printed materials. Software manufactures often build in anti-copy devices; and they tend to be more aggressive in pursuing violators.
Copyrighted works may not be placed online, in part or total, without permission. Both the person who places the song/music online and the person who downloads it are accountable. Creating rehearsal recordings without permission is also an infringement of the copyright law.
Scanners are copiers. If you are scanning for personal use as allowed by the “Fair Use” statute, don’t print and duplicate later without appropriate permission.
Movies and Video Recordings
The video recording of a staged musical production is protected by the copyright law. Rental and royalty fees and contracts generally specify the allowances and limitations. As with audio recording, one (1) copy of a musical performance for archival, rehearsal or evaluation purposes is allowed.
Showing a film in the classroom is allowed in the course of face-to-face educational activities in a nonprofit educational institution. However, to show a film for entertainment (including the bus VCR) requires permission from the copyright holder.
Penalties and Prosecution
Penalties for statutory damages range from $750-$150,000.00 per infringement. Willful infringement penalties are assessed up to $250,000 and 5 years in prison. The average penalty per infringement in the United States is $30,000.
Memorizing the entire copyright law is probably not necessary, but using common sense and planning in advance will protect you, and teach your students the importance of the copyright parameters. Copyright owners are often generous in their response to even the most routine copy request. A quick rule of thumb:
Copyright permission … directly from the publisher
Mechanical recording license … Harry Fox Agency
Performance license … copyright holder
Synchronization license (concert video) … directly from the publishers
Arrangements … Music Publishers Association (link at menc.org/copyright)
Copyright infringement cases generally come to light when the parties are famous or the settlements are big. For example A&M Records vs. Napster (2001) where a music sharing website sparked debate over website sharing verses stealing. Napster eventually folded their site and settled for $26 million in damages to publishers and songwriters. But there are also smaller cases where organizations, schools and corporations have faced monetary consequences by ignoring the law.
For teachers, musicians and students, copyright issues are not to be taken lightly. Willful copyright infringement can carry statutory damages from a minimum of $250 to a maximum of $10,000 for each work, or up to $150,000 per infringement. There is still much discussion of what is legal and what is not, but as educators we are bound by ethics that don’t include knowingly breaking the law. Perhaps more importantly, if you liked the music well enough to program it, or the performance was rewarding enough to include on your recording, then respect the composer, arranger and publisher rights to control the copying of the music they created. You may own the paper, but you don’t own the art!
Ever wonder why restaurants like Applebee’s developed their own celebration songs to sing to customers on their birthdays instead of pulling out the tried-and-true “Happy Birthday to You”? … Copyright laws.
The copyright belongs to Warner Music Group, and the company regularly charges up to $30,000 to anyone who wants to use the song for profit – whether it’s played in a film, sampled in a song, downloaded as a ring tone or sung at a chain restaurant. Even the Girl Scouts have been warned that singing it to campers could result in a fine.
Though there have been some questions posed about the validity of the copyright, up until this point, it has proven more cost-effective to simply pay to use the song than take the issue to court. www.suite101.com
Copyright … the Bottom Line
No You Can’t …
Make a copy that results in the loss of a sale.
Omit the Copyright notice from a copy.
“Out of Print” doesn’t mean permission to copy.
Photocopy from a collection.
Provide a copy for judges (some publishers will grant permission, but it should be in writing and attached to the judges copy).
Copy music lyrics or graphic images (lyrics may be printed in a program if the music has been purchased).
“I couldn’t find the copyright owner” or “the publisher has gone out of business” are not license to copy.
Create musical recordings of copyrighted works, including rehearsal recordings sample recordings or video recordings.
Yes you can …
Make single copies for teacher reference.
Make single copies of music that is on order (such as a extra parts needed for a larger secton – this does not apply to choral music).
Make single page copies for difficult page turns.
Make emergency copies to replace missing music for an imminent performance, provided a purchased replacement copy is substituted in a timely manner.
Legally download copies from an internet site that provides permission. Always attach proof.
Make “back up” or single classroom copies of rehearsal or performance accompaniment.
Make copies for use with extensive annotation where the user owns the original copy or multiple copies.
Broadcast Music, Inc. (www.bmi.com)
The Harry Fox Agency, Inc. (www.nmpa.prg/hfa.html)
Copyright Society of America (www.csusa.org)
United States Government (www.copyright.gov)