Klarinet Archive - Posting 000881.txt from 2003/05

From: "Kevin Fay" <kevinfay@-----.com>
Subj: RE: [kl] Mr. Sousa and the Eb Clarinet
Date: Sat, 31 May 2003 18:23:45 -0400

Matthew Lloyd ased in connection with making large photocopies of small
parts:

<<<You have, I presume, the original still in your possession when you do
this? So even, one thinks, if it isn't covered by fair use - what on earth
could they say damages were? They haven't sold any fewer than they would
have! Any intellectual property lawyers on the list who want to comment? It
isn't my field>>>

I am one (an intellectual property lawyer, that is). Comment(s):

1) Making a photocopy of a part that you will use for performance - even for
helpful things like readability or bad page turns - is not fair use. The
Music Publishers Association allows "[e]mergency copying to replace
purchased copies which for any reason are not available for an imminent
performance provided purchased replacement copies shall be substituted in
due course." - but this is a gift on their part, not an exception in the
copyright law.

See http://www.mpa.org/copyrigh.html and
http://www.mpa.org/cguide.html#limits for more information.

2) The fact that you have purchased the original sheet music doesn't make
the copying legal. A fairly common practice for secondary school teachers is
to buy a set of parts and hand out photocopies. This is illegal, and
increasingly publishers are going after teachers that do this. Music
publishers view sheet music as a consumable - you are expected to buy more
when the kids kill the parts.

3) You correctly note that, for the odd photocopy of a part, the money
damages would be very small - this means that your actions, while
technically an abrogation of the copyright holder's intellectual property
rights, are highly unlikely to result in a lawsuit against you. It's like
going a little bit over the speed limit; while technically against the law,
you're not likely to get a ticket.

. . . but beware of making *any* photocopies of rental music, especially
musicals. Even the copies for page-turns can raise ire, and publishers do
check from time to time.

4) A Sousa march might well be in the public domain; if it is, copy away.
There's a bit of debate over whether the editing done by Frederick Fennell,
for example, ratchets up a new copyright period. My view is - until the
courts say otherwise - it does; while it's OK to photocopy a part that's
clearly in the public domain (i.e, published before January 1, 1923), the
copyright bug on a more recent edition is a signal to stay away from the
photocopier.

When works fall in the public domain is pretty complicated, depending on
when the item was produced, a copyright registered and renewed. See, for
example, http://www.pdinfo.com/pdf/circ15t.pdf.

All of the above assumes U.S. law, which will apply internationally for
U.S.-based works (like Sousa) in any nation that has adopted the Berne
convention. Local mileage outside the U.S. may differ, of course.

kjf

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