Ugh. You can probably tell by the title of the thread and the link above what I think of this. The good news is that we are winning the war against common sense. Watch out, common sense. Soon you will have nowhere left to hide.
Posts: 2267 | Registered: May 2005
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I get ASCAP's argument, but it sounds like they're shooting themselves in the foot. If the songwriters only get paid when someone performs their work, it's in their best interest to make sure people want to perform, period. Cutting students off from live performances makes it less likely they'll keep music as a serious hobby or career later in life. That decreases the number of people performing songwriters' stuff.
If it was really just about fair pay, you'd think the lawyers could come up with some kind of exemption or reduced fee for student recitals. There's got to be more to their reasoning than that.
Posts: 2283 | Registered: Dec 2003
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My heart doesn't exactly break for the fact that the owner is going to end live performances- without having considered the idea of charging admission fees or *gasp* having people play original music. There are also thousands and thousands of well known songs that are not covered by ASCAP.
Besides, ASCAP already accommodates mall businesses by allowing them free use of cover material three days out of the year. That's a piece of compromise that is not required by the law.
I feel for her, yes, but she is making money off of other people's copyrighted material. Perhaps the rate should be more reasonable, but actually 1,500 dollars a year is not that much. And if ASCAP *didn't* protect its copyright in this particular instance, then it would expose itself and all its artists to the possibility of that copyright becoming invalid. They are required to defend it.
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I often think copyright and patent law takes things too far, but I don't see why this is a problem case. Someone wrote these songs and now someone else wants to play them in public in such a way that someone else (the coffee shop owner) benefits financially from the arrangement. This is exactly what copyright law is for.
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quote:A variety of rules note which establishments must pay the copyright fees, of which ASCAP takes 11 percent and divides among the artists using a complex formula. The rule that applies to the Fire Tower is that any establishment that has live performances of people playing “cover” music — something written by an artist who falls under the licensing agreements — four times a year, the establishment must pay the fees.
So, does that mean that if she only had these performances two or three times a year, she would not have to pay?
Last night my son performed at a piano recital...was that subject to ASCAP fees? Or does the fact that they only hold it once a year matter? Or that they don't charge admission? I really don't understand all the rules. I thought songwriters would make money anytime the song was sold...as in the sheet music. I can see them making money off that, and they should. I guess I don't know enough about this.
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Because piano recitals don't charge admission, no one is benefitting financially from the live performance, and fees are not required.
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She concluded she can't make money from it if she pays the fee, it's not that it didn't occur to her.
And Orincoro, I think you're confusing copyright and trademark. I don't think you need to do ANYTHING to preserve your copyright.
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quote:Because piano recitals don't charge admission, no one is benefitting financially from the live performance, and fees are not required.
This is not true. Almost certainly the music involved in the recital was licensed at some step. Even if the music itself was out of copyright (frequently true in classical performances), the arrangement is often in-copyright.
However, it is very common for such performances to fall under some umbrella license someone has. For instance, schools and school systems purchase umbrella licenses that covers just about everything.
On another subject, Orincoro is indeed incorrect. There is absolutely no action required to maintain a copyright as valid. Now, the damages that could be exacted might change depending on a number of factors, but they rarely get damages for situations such as this, anyways.
I've noticed a lot of people in music have misconceptions about copyright. For instance, there's a professor in the Department of Recording Arts here at IU who thinks the performance right is not a subset of copyright (it is). Not that a lot of people out of music don't have misconceptions about copyright, but given how much of a musician's livelihood is related to copyright, I would hope for better education.
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quote:Originally posted by scifibum: And Orincoro, I think you're confusing copyright and trademark. I don't think you need to do ANYTHING to preserve your copyright.
I believe (I can check with my dad who is an ip lawyer), that if you become aware of habitual copyright infringement and do not take action immediately, your ability to enforce your rights will be weakened. Although yes, I was thinking about trademark laws while I was writing that, not copyrights.
Posts: 9912 | Registered: Nov 2005
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quote:Originally posted by fugu13: I've noticed a lot of people in music have misconceptions about copyright. For instance, there's a professor in the Department of Recording Arts here at IU who thinks the performance right is not a subset of copyright (it is). Not that a lot of people out of music don't have misconceptions about copyright, but given how much of a musician's livelihood is related to copyright, I would hope for better education.
Understandably so, though. It's not a if the various trademark and copyright laws and establishments are common knowledge to everyone that they do effect- nor are they really all that comprehensible. I mean, I can perfectly understand a cafe owner never realizing that she didn't have the right to have someone else's music played in her establishment for profit. She probably thinks that the fact that she doesn't benefit from it financially because it costs more than she makes to be some kind of mitigating circumstance.
There is a weird kind of snake eating it own tale logic to the whole system though- young performers try to emulate their idols but are intimidated by the complexity of the ASCAP system, then they join ASCAP and other are too intimidated to play their music. Depending on my position as a song-writer, I might be pissed at ASCAP for not allowing my music to be spread around in this way. But on the other hand, I would want to collect what was owed to me for the performance of my work.
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What? Where are you guys getting that the business makes money from this? The business makes no money from this. I've been to this coffee shop. I used to live a few blocks away from it. And -- like a lot of things in Montana -- it takes a very communitarian outlook on things. They're basically doing a service for these kids and their families. They stay open late so that friends and family can some see the students showcase what they have learned in a public performance environment.
That hurts no one. Creates zero lost revenue for the members of ASCAP. (I'm learning guitar myself right now. Am I supposed to send them money every time I play 'Knockin' On Heaven's Door' at home in front of my sister?) And in fact I think there's a benefit to letting things like this happen. Which is that some of these students might fold these experiences into a larger framework and go on to become well-known performers who might make ASCAP a lot of money. With things being what they are, I think the music industry should jump at the chance to encourage young people to play music.
Legally, I know ASCAP is in the right. These laws are so broken, and this way of thinking is so broken. When there is no fair use argument available for students playing songs at a recital for family and friends, free of charge, there is something wrong with the way this has been structured.
Posts: 2267 | Registered: May 2005
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quote:Do I need a music license from ASCAP or BMI to hold a piano recital for my students? One of the rights held by a copyright owner of a musical work is the exclusive right to perform the work in public. If music is performed in a public place or if music is transmitted to the public via radio, television, music on hold, or by the Internet, it may only be done with the permission of the copyright holder. That permission is typically obtained by purchasing a music license from the three primary music licensing organizations of ASCAP, BMI and SESAC. Please note that a music license from ASCAP, BMI and SESAC is only required for public performance of music. Music performed in a private residence, during an educational lesson in a private studio, or as part of a private recital involving a selected group of students does not constitute a public performance. Therefore, recitals by a music instructor’s students for a select group of family and friends would not constitute a public performance and would not require a music license.
Assuming that the Music Teacher's National Association has their facts correct, then a private recital (such as most children's piano or instrumental recitals) do not require a payment or license in order to use the music in question. Family and friends, the principle attendees for student recitals, do not constitute a public performance. Therefore, my answer above was correct, since I was referring to a piano recital.
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quote:Originally posted by TL: What? Where are you guys getting that the business makes money from this? The business makes no money from this.
This is incorrect. Though they may be doing a nice thing for the community by supporting local students, they are also selling coffee. They're a business. You don't have to charge admission to make money off of an artist's entertainment.
It is also worth noting that there are a great many songs that the students can pay without any copyright problems, even some of the more popular songs. I haven't looked into it since I'm not a musician, but they exist.
And no, you don't have to pay to play a song in front of your sister unless you're charging her to watch or charging her for drinks to enjoy while she watches.
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The "family and friends only is okay" interpretation is quite tenuous if we're talking about more than a dozen or so people. Also, I live in a town where piano recitals, including by younger students, are very regular events and often involve far more than family and friends (by the hundreds). You're stretching quite a bit to say that you were right because you used the phrase "piano recital". I think you'd find few people who only classified performances given in front of a small group of family and friends or fewer as piano recitals. For that matter, if "piano recital" doesn't include anything beyond that for you, what do you call similar performances with larger audiences?
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No, it isn't. The owner of the coffee shop even states in the article that they sell less product during this time than it costs to keep the store open for the two extra hours
fugu13, who are you talking to?
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-- But I also note that the issue in question really has nothing to do with whether or not the business is making money from these performances, at least from a legal standpoint. It's not the basis of my argument that it ought to be allowed, either. I'd still be in favor of it, even if the business was making money.
We're talking about local people playing guitar at a coffee shop in a small town. This does not hurt ASCAP.
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I was continuing my discussion with andi330.
And yes, you are incorrect. If she stayed open but did not have the music, presumably they would sell even less. Thus, the coffee shop is still realizing income that they wouldn't without the music.
Whether that would be enough income to make it worth staying open is another matter, and totally irrelevant to copyright. If we're being particularly legally minded, for a use to be commercial for the purposes of fair use considerations only requires it be associated with something commercial. The coffee shop situation clearly is.
edit: also, whether or not ASCAP was "hurt" really isn't relevant. Copyright laws aren't about preventing people from being hurt, they are about securing rights. This situation would fall under copyright law under just about any situation. And, as for ASCAP not being hurt, they'd have more revenue if the coffee shop paid the licensing fees, wouldn't they? It isn't like we're talking about exorbitant amounts, either. I think all the licensing fees involved would be statutory (unlike almost every other sort of copyright holder, musicians are subject to a set of compulsory licensing requirements) and nominal.
Posts: 15770 | Registered: Dec 2001
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So you've gotta pay if you want to perform covers, huh? Seems like a lot of us evil bands are getting away with criminal activity when we pay tribute to another artist's song from time to time.
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No, it isn't. The owner of the coffee shop even states in the article that they sell less product during this time than it costs to keep the store open for the two extra hours
The fact that the venture is unprofitable changes nothing about the nature of the venture. Music is being played. Coffee is for sale. There is a potential in that for profit.
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Saephon: no, just civil infringement. And you aren't evil, just using an artist's music without their permission. Would you like it if you wrote a song, then some big-name band used it in an album and made millions without giving you anything? The same right protects both of you.
There's a decent chance you aren't even civilly infringing, a lot of the time. Many places that regularly have cover bands have licenses for those performances.
Posts: 15770 | Registered: Dec 2001
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quote:Originally posted by TL: We're talking about local people playing guitar at a coffee shop in a small town.
And as we all well know, the rules in small town America are different for some unknown reason. Presumably because anything done there is not wrong, nor can have any effect whatsoever on the outside world. How wonderfully narrow that view can be.
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It seems to me that if the owner of the coffee shop gave out coffee for free, or didn't sell anything and just made the shop available for the recital then there wouldn't be a problem with it.
I do think it's a little ridiculous that ASCAP cares about a small business owner who makes a few bucks because of a live performance, because I think the question ASCAP should have asked itself before issuing this warning should have been, "is this business owner making money from the performance because the music's copyrighted or because it's a live recital?"
To me, it's an important distinction to make. If the recital were drawing people from all over town because they knew a particular Tim McGraw song was going to be featured, then, issuing a warning about infringing a copyright would be warranted, but issuing a warning because a business owner is providing refreshments is strange to me. But, that's just me.
Posts: 681 | Registered: Feb 2004
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I think you'll find playing copyrighted songs often leads people to make money even if their audience is not seeking out specific songs. Presumably the general appeal of the songs is part of the reason bands cover them.
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I understand that, but in this situation, I find it more likely that the audience was there because of who the musicians were, not because of the songs they were playing. Sure some parents might be apprehensive about going to an all Bach recital, but because their child is playing, they'll still show up.
But, I wasn't there and I don't know the attitudes of the parents. I'm just ranting a bit. Posts: 681 | Registered: Feb 2004
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quote:And as we all well know, the rules in small town America are different for some unknown reason. Presumably because anything done there is not wrong, nor can have any effect whatsoever on the outside world. How wonderfully narrow that view can be.
The day you stop throwing out these straw men and gleeing through threads as though your habit of leaping way beyond reason and meaning is a personal virtue and an intellectual trump, I'll eat a hat.
I didn't say that. I didn't mean that.
How many times have you heard that from your fellow Hatrackers?
#
My argument is that there ought to be a reasonable allowance for fair use, and that this ought to fall under it. In a big city, in a small city, on the moon. I believe there is a benefit to allowing young people* to play music. I believe there is a tradition of That Very Thing having been a beneficial part of the fabric of American society. But then, I know about the New York coffee shop folk music scene in the 50's, and the various artists who came out of that scene. I know about the Blues tradition.
I think the primary consideration in evaluating fair use ought to be this: Does this hurt anyone? The publisher, the copyright holder, the songwriter? Does this cost them lost revenue? Does this damage the integrity of the song? And then I'd say: let's see. Local musicians perform a couple of tunes in a small town coffee shop. Doesn't hurt anyone. Check. Doesn't cost anyone lost revenue. Check. Doesn't damage the integrity of the song. Check. Inversely, is there a cultural benefit to allowing this? Of course there is. Check. Okay. Play on.
I know there are counter-arguments to this; that the copyright holder should be in control of how his music is used. (Except he's already not, because he's turned those powers over to ASCAP.) I know that's not even close to what the law currently says. Innately, one wants to fall on the side of the law. However, I am of the opinion that the law is completely broken, and cannot be said to benefit anyone (and by anyone what I should have said -- what I mean -- is our American society as a whole -- any longer.)
In general we need shorter copyright terms, less draconian enforcement, more consideration given to the questions "what's the benefit?" and "what's the downside?" where if there's no clear downside** and a clear benefit, we allow it. We need that written into the law. We also need to get rid of concept of extending copyrights***.
I suppose it comes down to the question posed in the topic: What are copyrights for? I'm of the opinion (and I think the history bears this out) that the purpose of having copyright at all is to benefit culture and society. So copyright law has to walk a fine line between two considerations: Does the law benefit the creator / copyright holder, thus encouraging creation? Does the law benefit the culture / consumer, thus providing individual people with reasonable access to ideas/books/music/etc?
That opinion, then, shapes my views on matters such as this.
*old people too. **slippery slope arguments do not represent, to me, a clear downside.
Posts: 2267 | Registered: May 2005
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Given that quite a few coffee shops and other places with occasional live music pay ASCAP (or other appropriate licensing body) fees, this is blatantly false. Allowing all of the places fitting your description to play live music free would be a difference of millions of dollars. I'm not sure if that's just millions of dollars, or tens of millions of dollars, or more.
If you want to make your argument, don't base it on things that are not true.
Posts: 15770 | Registered: Dec 2001
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Speaking of blatantly false, you're making up numbers to support your argument. Millions. Tens of millions. I don't know what the numbers are; neither do you. If you'd look it up I wouldn't mind. But it would be hard to sway me with the weight of a guess.
Anyway, licensing fees of that particular flavor are part of the problem. I hadn't been thinking of them when I typed the above, but now that I am, I suppose I'm not against them as long as they allow for the whisper of a dream of fair use as I wish it could be... In other words, let's weigh the revenue from such licensing fees against the benefit of small-time free performances and come up with a compromise. Maybe a no-cover-charge / less-than-100 people "clear benefit" / no licensing fee necessary rule.
Since I'm whimsically fantasizing about things that don't exist, anyway....
Posts: 2267 | Registered: May 2005
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RL: The arrangement of a piece of classical music is often still in copyright.
TL: Millions is almost certainly a low estimate. There are hundreds of casual music venues in one medium-sized US city alone, much less the huge numbers in cities like New York and Chicago. The average payment we can guesstimate (on the low end) at a thousand dollars (lots of places at a few hundred, and then the ones with bands every weekend at thousands of dollars -- you can check out specific rates from some of the licensing organizations if you want). It only takes one thousand venues at a thousand dollars each to reach one million dollars. As there are a lot of musical venues in NYC, they probably make that much or more in licensing from there alone.
A few million dollars is a small amount in an industry like this. They'll spend more than that promoting one album. I would be surprised if the amount they are taking in from small venue licensing is under tens of millions.
But if you want, you can imagine the licensing fees are much less. Even so, there's an obvious, tangible, substantial loss in revenue from suddenly removing that licensing requirement.
edit: and I don't really see what's so heinous about this fee, even for relatively small situations. For those levels, we're talking licensing fees that come to a few dollars a song, for the right to play almost any piece of popular music written in the past several decades.
Posts: 15770 | Registered: Dec 2001
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quote: My argument is that there ought to be a reasonable allowance for fair use, and that this ought to fall under it. In a big city, in a small city, on the moon. I believe there is a benefit to allowing young people* to play music. I believe there is a tradition of That Very Thing having been a beneficial part of the fabric of American society. But then, I know about the New York coffee shop folk music scene in the 50's, and the various artists who came out of that scene. I know about the Blues tradition.
Look, I agree, but your point about it being a small town or that the cafe doesn't make any money on it cuts no ice. I think the licensing ought to be payed for by the city or other local government if they want to foster this kind of atmosphere. I would want to live in a small town that was willing to do that.
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Given that quite a few coffee shops and other places with occasional live music pay ASCAP (or other appropriate licensing body) fees, this is blatantly false. Allowing all of the places fitting your description to play live music free would be a difference of millions of dollars. I'm not sure if that's just millions of dollars, or tens of millions of dollars, or more.
If you want to make your argument, don't base it on things that are not true.
TL seems to be reasoning that those who already don't pay licensing will all decide against playing any copyrighted music, rather than pay the fees. The math doesn't work otherwise.
quote: I suppose I'm not against them as long as they allow for the whisper of a dream of fair use as I wish it could be...
In your understanding of the concept, what about playing someone's copyrighted music in a business establishment, for the purpose of, or with a result of increased revenue (that is, cups of coffee are sold, even if you lose money), without paying that person for the privilege, constitutes a "fair use?"
I can quote someone in a book, or use their picture, or play a bit of their song on my radio show as part of a news story about it. That's fair use. That allows other people besides the artist to interact with the work in a way that ads meaning to a new work. What you describe is not that. It's something else, and I'm curious to know why you think it isn't, or why you think it's acceptable despite this difference.
quote:Originally posted by fugu13: RL: The arrangement of a piece of classical music is often still in copyright.
That's a non-issue for most pieces of music these days. It doesn't take much footwork to find an Ur text edition or a printing reproduced online (or by Dover or another printer) that is not in copyright. There are also plenty of editions that are free to copy and perform, even if they are new arrangements.
There is no need for an arrangement of most Bach piano pieces that is copyrighted. That may not be true for bigger pieces, which are reprinted, annotated, etc, but for the purposes of a recital, thousands upon thousands of pieces are readily available.
quote:Originally posted by TL: My argument is that there ought to be a reasonable allowance for fair use, and that this ought to fall under it. In a big city, in a small city, on the moon. I believe there is a benefit to allowing young people* to play music. I believe there is a tradition of That Very Thing having been a beneficial part of the fabric of American society. But then, I know about the New York coffee shop folk music scene in the 50's, and the various artists who came out of that scene. I know about the Blues tradition.
There is a degree of fair use in copyright law. I am no expert and don't know the details, but there are rules covering educational fair use and you could look them up, if this is something you're passionate about.
But I'm still not buying your argument. The fact of the matter is that if I write a song, it is MY song and I should be allowed to set the rules for who can play it, when, and for how much money. If you don't find the fees fair, then you don't have to play that piece. You can go to a competitor of mine -- another song writer whose music you feel is a better value to you. Or you can choose song that is no longer under copyright and play that.
Without copyright, it is difficult to apply free market principles to art because it can so easily be copied and distributed, with no profits going to the original creator.
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"The fact of the matter is that if I write a song, it is MY song and I should be allowed to set the rules for who can play it, when, and for how much money."
I wrote out a quibble about the intent behind copyright, but I realized that in effect you are right. Due to the existence of copyright, it's your song and you have the right to control the licensing of its use.
It's just good to keep in mind that the right is artificial and the intent behind it is socialist.
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Me too. The specification of property rights is entirely part of free market economics. After all, the rights we reserve for physical property are just as artificial.
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I'm saying it's socialist because the reason copyright exists is because it's presumed to be beneficial to society for people to do creative work, and that they'd do less of it without copyright. It's a cultural stimulus package.
Property rights may be artificial but not to the same extent. We have an innate tendency to claim and defend territory. It has everything to do with "this is mine, so it can't be yours." Unlike a piece of land, a song or a painting can be duplicated without physically taking anything from the original creator. Compared to other property rights, it requires a bit more imagination and artifice to construct rules that treat an copyable arrangement of symbols the way we treat real property.
I suppose if socialism denies or weakens the right of personal property, while copyright constructs and protects a form of individual property, that labeling copyright "socialist" doesn't work. My bad.
To rephrase, then: copyright exists in order to stimulate creativity for the benefit of society. When an IP owner asserts their rights, they should keep in mind why they have those rights, and this should temper their efforts to extend or enforce those rights. "I made it, so of course it is mine and I have the right to control how it is used by others" must include an expiration date clause in order to be accurate. Intellectual property is simply a temporary exclusive license from the government.
Some would prefer for copyright to be permanent or nearly so. Efforts to extend and preserve the copyright to really old stuff reflect a version of the "it is mine" mindset. This can become almost completely divorced from the idea of giving some benefit to the creator of a work in order to stimulate similar activity. Walt Disney is dead, he already got all the benefit we can give him! Protecting his 60 year old work is going to discourage creative derivative work that might otherwise be done, and in the meantime any legal copying of that old work accrues benefit to a corporation that had nothing to do with the creation of the work.
I'm so disenchanted with copyright extensions and corporate IP rights owners that I think I'd prefer a system that dictates that copyright cannot be sold or traded (but preserves copying under license). I'm also fairly sure we'd be better off with a 20 year expiration date on copyright.
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I can't stand what Disney has done to copyright law. They've twisted it well past what it was intended to do. Although to be fair, they're shooting themselves in the foot. They are discouraging their own creativity by continuing to rehash the old stuff again and again. And frankly, their stuff sucks. I got a boatload of Disney (Mickey Mouse and company) books from my parents when I had my kids and all of them went in a box in the basement after a single read. Awful stuff. And I think people are noticing that their well has dried up and that others are doing much, much better things. So they can have Mickey Mouse if they really want him....for all the good it will do them.
And now I'll stop before I get too carried away with my Disney rant.
I would be careful, though, about calling everything that is generally good for society a socialist principle. Assuming that you mean socialism in a bad light, the only thing left is anarchy -- because the government itself exists for the good of everyone.
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Yeah, bad choice of word. Not that I'm against all forms of socialism, because I'm not, but it's just a stretch.
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For those of you correcting my interpretation of fair use, I'd just like to point out that I know what fair use is, under the current law. I thought I was being pretty clear: I'm not arguing that this is fair use. I'm saying that I'd like it to be. I'm not misunderstanding what the law is now. I'm attempting (probably poorly) to argue that it ought to change into something more like what I'm describing.
I don't think the licensing fees are heinous or evil. But I don't think the way they are currently implemented passes the "what is the purpose of copyright law" test.
It's cool. Reasonable people can disagree.
Christine, I agree with you about Disney.
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quote:Originally posted by TL: I don't think the licensing fees are heinous or evil. But I don't think the way they are currently implemented passes the "what is the purpose of copyright law" test.
It's cool. Reasonable people can disagree.
Yeah, I'm just not with you on this. And you'll know from my previous posting that I'm not fan of the over-extension of copyright into ridiculously anti-creative activity.
But let me try to give a piece of context for your point, and why I fall on the other side of it. Shakespeare lived in a world where copyright was an unknown concept. There did exist some basic business arrangements whereby an author's exclusivity was secured in other ways, but the right to perform Shakespeare's plays was not one held by Shakespeare or his acting companies. So when Shakespeare wrote his plays, they could be copied down at the performances and performed by other troupes very quickly- severely effecting Shakespeare's, and what's more, his theater's, income.
Now, as in everything, there is a grand balancing act here. The life of the entertainment industry probably does not depend on cover royalties. However, the system of financial support and encouragement for the creation of large-label music, whether you like that music or not (generally I don't, but I'm not the only person on Earth), is payed for by people who, these days, have every opportunity to experience that music for free. People have to choose not to do that now. At the same time, the companies have to adjust to finding new ways of getting people to pay for things. A crappy pop album with one good song will no longer sell for 20 dollars. It will now get 1 dollar per download on itunes. That's a good thing. However, the idea that the popularity of a piece of music or an artist can be boosted by live performance, and therefore this should not be compensated, is not any different from the idea that downloads have positive impacts on live performance revenue. They do, but if everyone gets everything for free up to that point, with the understanding that eventually this popularity does allow the artist to be financially secure, that's not exactly fair to the artist, nor the people paying for the production of all that material.
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TL: the reason fair use works the way it does is complex. Basically, statues don't define specific instances of fair use, only general guidelines courts are to follow. This is done intentionally, because enumeration can lead to a narrowing as there is a tendency to reject that which isn't. So expanding the legislative definition like you suggest would be a dramatic change, and getting the courts to expand the definition (which they prefer to approach on a case-by-case basis) would be very difficult.
That is, there would need to be a vast overhaul of the framework for fair use, when, honestly, fair use for non-internet things works pretty well right now. Situations like this are at best edge cases. The biggest problems in copyright have nothing to do with fair use, and everything to do with duration and criminalization.
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This question of fair use has come up in the past with our church choir. It might be a good idea to look at a discussion provided on a government copyright office website of the "fair use" doctrine, as it has now become codified in section 107 of the recently revised copyright law:
quote:One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work. The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”
Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.
The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.
When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.
In our choir, we decided the proper thing to do is purchase as many copies of the sheet music as we need. For an 8-10 minute church anthem, the cost is not prohibitive. In fact, it is not much more than it would cost to xerox all the pages, not to mention the chore of collating, etc.
Just to throw the idea out there, are we cheating if two choir members share one copy of the sheet music, as is commonly done? We prefer to have one copy for each choir member for ease in reading the music, but once in a while we may be one or two copies short. Then a few people share.
Now, what we could do (if we were more professional) is memorize the sheet music during our practices, then perform it from memory. I suspect we could probably get away with only purchasing one copy of the sheet music in that case, since we do no use any copies when we sing from memory.
Of course, if Steve Green sings a song written by Michael Card, he is probably going to memorize it. There is a note on the flyleaf (or these days, the liner with the CD) who wrote the song. I don't know if Green has to pay a commission to Card.
[ May 18, 2009, 06:24 PM: Message edited by: Ron Lambert ]
Posts: 3742 | Registered: Dec 2001
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As for performing as an individual, I as a student or a performer have always had to have the original music on hand. Although in practice it's often borrowed.
The written music purchased kicks back whatever fees are due to the composer (if any).
Posts: 8473 | Registered: Apr 2003
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quote:The written music purchased kicks back whatever fees are due to the composer (if any).
This is not generally true in the US. I do not know if it is true in Canada. It may be that some music publishers specifically include a license for public performance with their sheet music.
edit: and whether or not a piece has been memorized and is being done without looking at any music is entirely irrelevant to whether or not the performance is infringing. Your church is infringing if they lack the appropriate licenses, but those licenses might or might not be included with the sheet music in question.
Posts: 15770 | Registered: Dec 2001
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"Just to throw the idea out there, are we cheating if two choir members share one copy of the sheet music, as is commonly done? We prefer to have one copy for each choir member for ease in reading the music, but once in a while we may be one or two copies short. Then a few people share."
Imagine what you could do with an elaborate system of mirrors!
The church ladies who ran the choir in my parents' home congregation were all blatant copyright infringers. It lent a bit of irony to the whole enterprise.
Posts: 4287 | Registered: Mar 2005
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quote:The written music purchased kicks back whatever fees are due to the composer (if any).
This is not generally true in the US. I do not know if it is true in Canada. It may be that some music publishers specifically include a license for public performance with their sheet music.
edit: and whether or not a piece has been memorized and is being done without looking at any music is entirely irrelevant to whether or not the performance is infringing. Your church is infringing if they lack the appropriate licenses, but those licenses might or might not be included with the sheet music in question.
Actually fugu, when it comes specifically to choir music, the practice of including performance rights with the purchase of a bulk order of scores is fairly common.
Posts: 9912 | Registered: Nov 2005
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Yeah, I think it would make sense with a bulk order. What I'm hearing in Teshi's (and possibly RL's) statement is that they went to a music store and bought the score, and it isn't generally included in that.
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Scifibum, be fair. Those ladies may not have been deliberately, flagrently violating copyright law. They probably were confused about the "Fair Use" doctrine, as many are, especially since most church choirs do not charge anything, and figure they are giving publicity to the composer's music. As I read section 107 of the copyright law, church choirs should pay for each copy of a musical work that they perform. But I would not be hard on a small church that does not budget much for their all-volunteer choir. Most choir directors purchase the music for the choir with their own money. And there has been a lot of confusion over the years about what constitutes "Fair Use," especially before it was codified in the current law.
Posts: 3742 | Registered: Dec 2001
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The performance right has nothing to do with having paid for copies or not. The only thing that matters is if you have a performance license from the copyright holder, and that is not always included with copies of the sheet music.
It seems it is commonly included with bulk orders of the sheet music.
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