Klarinet Archive - Posting 001445.txt from 1998/03

From: Martin Pergler <pergler@-----.edu>
Subj: Re: urgent plea
Date: Tue, 31 Mar 1998 22:24:49 -0500

On Tue, 31 Mar 1998, Kevin Fay wrote:

> Perhaps you should consult a lawyer who regualrly deals with copyright.
> I do not have to--I am one. There is no fair use right under Section
> 107 of the Copyright Act to make copies for page turns. Your
> photocopying is actionable (although enforcement is not likely to
> happen).
>
> Some photocopying is OK for scholarship and/or criticism. If your
> performance is one where tickets are sold, however, you are copying for
> a "commercial purpose"--and doing so at your peril. In Sony Corporation
> v. Universal City Studios, Inc., the Supreme COurt stated a presumption
> that all commercial uses are presumptively unfair (i.e., not "fair
> use"). Further, in Campbell v. Acuff-Rose Music, Inc., the Court stated
> that this presumption, although not dispositive, is most difficult to
> overcome in instances of "mere duplication." Translated from
> legalspeak, this means that the very worst thing you can do to music
> from a copyright perspective is to photocopy it.

I'm not a lawyer. I have no legal training. But I'm curious, and I think
musicians should be curious about these issues. Perhaps someone
who is a lawyer can correct my misconceptions...my pretensions
on knowledge are skewed by being a teacher, where fair use
issues apply with regards to photocopied handouts.

I understand that fair use under Sect. 107 of the *U.S.* Copyright Act of
1976 depends on four factors. The weighting of the factors if they are
contradictory in a certain situation is up to the court.

1. Purpose. Commercial use goes against fair use. Educational or nonprofit
use weighs *for* fair use. If the use is transformative, it is more
likely to be fair use than if it is just duplication.

Musings: Professional performance is clearly commercial. Is extensive
addition of markings (to the extent that they will
considerably disturb future users of a rental part) transformative?
How about if I'm playing for free at a free student recital, as part of
my education as a musician?

2. Nature of the original work. I think applies for instance to fiction/
nonfiction, published/unpublished...

Musings: For a rental part of music, nature will weigh against fair use.

3. Amount. Short excerpts are more favoured than a whole "work".

Musings: A whole rental part would probably be a whole work. But one
page (or part of a page) to facilitate a page turn seems to be an
excerpt!

4. Effect (the most important one). Was there money lost by someone
as a result of the copying? Or an effect on the market of the original
item?

Musings: Let's take four cases.

a) I photocopy the Brahms Trio from the library. I could and should have
bought it. Effect is clearly against fair use.

b) The pianist photocopies her part of the Brahms Trio because the binding
is awful and the pages keep bending together. She has the original in her
bookbag/at home while playing. I don't know, but I'd like to hope the
effect is not against fair use because there is not a lost sale here;
the publisher won't sell us a more "piano-friendly" copy (of this
edition)!

c) I photocopy the rental clarinet part to the Barber Violin Concerto (or
whatever, I think that's rental only) because I'm going to scribble all
over it. Again, I'd like to hope the effect is not against fair use,
because I *can't* buy or rent my own copy to deface to my heart's delight.

d) I photocopy page 5 of some part because of a bad page turn. Again,
I'd hope the effect would not be against fair use, if I own
a copy of the whole part. But maybe one could claim I should have
purchased 2 copies!?

----

Again, these are musings of a legal ignoramus, and hence dangerous! I
bring them up since the only definitive-*sounding* guidelines that I've
seen on this have been from an organisation of music publishers, and they
have a vested interest in discouraging copying wherever possible. These
guidelines didn't seem to link up with the points actually listed in the
Copyright Act. I'd love to see something at once relatively authoritative
and unbiased on this issue.

Comments? Pointers? Instructions for me to crawl back under the rock
from which I came?

Martin

-------------------------------------------------------
Martin Pergler pergler@-----.edu
Grad student, Mathematics http://www.math.uchicago.edu/~pergler
Univ. of Chicago
(and amateur clarinetist, recorder player, and singer)