Klarinet Archive - Posting 000672.txt from 2001/06

From: rgarrett@-----.edu
Subj: Re: [kl]copyright question answered by a copyright lawyer
Date: Fri, 22 Jun 2001 09:14:29 -0400

Oliver Seely brought up some interesting points and questions regarding
copyright, out of print material, etc. I forwarded most of the discussion
to my brother, an attorney in Oregon and Washington, and he, in turn,
forwarded it to the preferred specialist for this area in their firm. No
names were used - including the listserv name - just the discussion
itself. Here is the response:

Copying sheet music like that is class copyright infringement. It is
illegal and music publishers really hate it; and music publisher's
equivalent of
the national Software publishers association will pursue violations with a
vengence to get publicity. As long as the copyright is still in effect and
has not expired, the work simply may not be legally copied without the
permission of the copyright holder. The fact that something is out of print
is irrelevant. Letters that you have written were never in print, and yet
cannot be copied and published without your permission (subject to some
limited exceptions). A single painting is not published, but it may not be
photographed and copied, etc. The fact that you can't buy a copy is not a
compelling argument either--the scope of dissemination is subject to the
whim of the copyright holder.

However, the real world deals with these issues all the time. Your brother
is probably aware that materials are copied by educational institutions all
the time. There are some "fair use" exceptions for segments in scholarly
works and ad hoc classroom use, but that doesn't cover what the person who
wrote the opinion on this list wants to do. Universities have been prosecuted
for copyright violations. The first big case in the country was a few blocks
away when the Univ. of Oregon extension was sued over copying software
for use in its computer classes. The University lost and paid heavy damages
and agreed to a permanent injunction. There is no difference in the law
between
the copyright in software and the copyright in printed sheet music.

The way that this can be done is very simple, however: simply ask for
permission of the publisher or copyright holder to make a certain number of
copies of the work. You will probably have to pay a per-copy fee. It may
be less than the retail cost, but it might not be--that's the publisher's
right. A few years ago Lotus Agenda was out of print and a friend of mine,
and fellow attorney, wanted to acquire a copy for his sister. Lotus charged
him a $10 fee and allowed him to make a copy for his sister. Music
publishers have quite efficient "Permissions Departments" and it is very
easy to find them. Schools at all levels, community and other amateur
theater groups get permission to both (i) copy materials if they are out of
print and (ii) more commonly, perform the work. Your brother probably only
has to worry about the first one. Performances by schools, I understand,
are considered fair use--but I have only been told this in regard to school
performances for which there was no charge.

So, permission is required with regard to copyrighted works both (i) to
literally copy the printed work and (ii) perform the score/book publicly,
unless it is simply a school performance that is part of an academic course
(Spring band recital, etc.).

Best wishes,
Roger Garrett

Roger Garrett
Clarinet Professor
Director, Symphonic Winds
Illinois Wesleyan University
School of Music
Bloomington, IL 61702-2900
Phone: (309) 556-3268
Fax: (309) 556-3121

"A man never discloses his own character so clearly as when he describes
another's."
Jean Paul Richter (1763-1825)

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