Klarinet Archive - Posting 000083.txt from 1998/08

From: "Edwin V. Lacy" <el2@-----.edu>
Subj: Re: [kl] Copywrite Question for "Experts"!
Date: Mon, 3 Aug 1998 16:06:20 -0400

On Mon, 3 Aug 1998, Lee Hickling wrote:

> It sounds as though you're saying that any musician on a paying gig is
> violating a copyright every time he improvises from a score, or a fake
> book - or even if he is playing by ear.

If the fake book is one of the so-called "legal" ones, then whoever
published it can be assumed to have gotten copyright clearances to include
the songs in the book. As to whether you can legally perform for
compensation from that book, you have to deal with the holder of the
copyright on the fake book itself.

In most of the venues where you might play, the venue will probably have
obtained a "site license" from some of the performing rights
organizations, such as BMI, ASCAP, and others. For example, the
University where I teach, the orchestra in which I play, and most of the
other locations in the area where I might be playing gigs of one kind or
another have been required or pressured by the abovementioned organiztions
to purchase a license for all performances in that location of works for
which the copyright or performing rights are held by the various groups.
So, if you come to our campus and play, you are covered by our site
license. They estimate how many of their works might be played here
during a year, and send a bill to our business office, which they pay. We
in the music department never have any part in this transaction.

> What if he's playing for kicks, and not getting paid?

What if I go into a bookstore and find a book I want to read "just for
kicks," and I won't be making any money as a result of reading it. Is it
OK for me to steal the book under those circumstances?

> Or how about this: Every week I play the organ for services in two
> different churches. Both of them have hymnals that they bought, and I
> assume satisfied the copyright holders that way. Thanks to a jazz
> background, I'm able to adlib transpositions to make a singer more
> comfortable, or adapt a piano arrangement for organ as I play it, or
> fake different voicings and bass lines so every verse of a hymn doesn't
> sound the same as the one before. Church organists do those things
> routinely. Being able to do them is expected. It's one of the
> qualifications for the job.

The church hymnal will have been publised and distributed with the
understanding that works in it will be performed each week in the churches
which perform it. The hymnal itself will be copyrighted, and some of the
hymns will have their individual copyrights, for which the publisher will
have secured the right of publication. To play an improvised version, if
the law is interpreted rigidly, is probably a violation of the copyright,
but I have never heard of a church or any musician being prosecuted for
doing so.

> Should I be constantly looking over my shoulder for the copyright cops?

You can never be sure. I had an acquaintance who was a choir director in
a small college and who was making photocopies of choral works and passing
them out to his choir. The justice department and the holder of the
copyrights of some of the pieces decided to make him a test case. So,
they filed suit against him and the school where he taught. The penalties
are severe - the numbers I recall are something like a fine of $15,000 and
10 years in jail. This case was settled out of court, and the college had
to pay a lot of money. They weren't very happy about the situation.

Ed Lacy
el2@-----.edu

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