Klarinet Archive - Posting 000099.txt from 1999/05

From: "Kevin Fay (LCA)" <kevinfay@-----.com>
Subj: [kl] Copyright and the Messiaen (long)
Date: Tue, 4 May 1999 16:41:08 -0400

Forgive me for this message--I am a copyright attorney, and can't help
myself.

Nicholas Yuk Sing Yip asked:

<<<About the Messiaen. I am analyzing it for an assignment and my prof.
has the score. If you want one I can borrow it and you can make copies,
if he does not mind breaking copyright rules. >>>

Making a copy of the movement for scholarly analysis is not necessarily a
copyright violation. Section 107 of the Copyright Act specifically allows
some copying for educational purposes:

107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of section 106 and 106(A), 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 (including multiple
copies for classroom use), scholarship, or research, is not an infringement
of copyright. In determining whether the use made of a work in any
particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the
copyrighted work.

An excellent guide for fair use can be found at
http://www.mpa.org/cguide.html#appendix, which also has the agreement of the
MENC and other teaching associations and the Music Publishers Association as
to the joint interpretation of the Copyright Act as it pertains to copying
music.

Your copying of the entire movement of the Messiaen would be pushing the
envelope of the fair use available under Section 107--it would not be
included in the MENC/MPA's interpretation (See their Appendix B). They
state that "For academic purposes other than performance, multiple copies of
excerpts of works may be made, provided that the excerpts do not comprise a
part of the whole which would constitute a performable unit such as a
section, movement or aria but in no case more than 10% of the whole work.
The number of copies shall not exceed one copy per pupil."

Because the Abyss is often performed on a stand-alone basis, it could be a
"performable unit" and therefore not subject to the interpretation of
permissible use. OTOH, the joint interpretation is not the only one
possible under Section 107. Were I to render legal advice to you (which I
am prohibited from doing), it could very well be that your copying of the
Abyss of the Birds would be within Section 107's parameters. Or not.

Oh, and one final thought--DO NOT EVEN THINK OF PERFORMING OFF OF THE
PHOTOCOPY. Performance--especially for profit, but any performance--is
never, ever fair use. Every time you perform of a photocopy, even for a
page turn, is a violation of the Copyright Act; it is never fair use, even
for "academic" purposes.

kjf
-----Original Message-----
From: Nicholas Yuk Sing Yip [mailto:nyip@-----.edu]
Subject: [kl] Messiaen, enjoyed Adams concerto

I just got to listen to some 20th century clarinet music form one of
my professors and another clarinetist. I heard the John Adams clarinet
concerto "Gnarley Buttons" and enjoyed it. Other new clarinet works were
played and enjoyed.
About the Messiaen. I am analyyzing it for an assignment and my prof.
has the score. If you want one I can borrow it and you can make copies,
if he does not mind breaking copyright rules.

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