Klarinet Archive - Posting 000375.txt from 2009/01

From: "Kevin Fay" <kevin.fay.home@-----.net>
Subj: RE: [kl] Prokofiev Sonata
Date: Sun, 25 Jan 2009 17:59:01 -0500

Alexander Brash posted re the Prokofiev Sonata:

<<<1) The creation of the arrangement is definitely not copyright
infringement, as he's not selling his edition or profiting from it or
publishing it.

2) Simply performing Prokofiev on an instrument different from what he
intended is not a copyright violation in any way - and even the most tenuous
argument here is easily quashed by a fair use defense.

Am I missing something?>>>

Yes - a basic understanding of copyright law. There's a lot of information
(and misinformation) here on the list, as this subject has come up often
over the years.

A quick guide - although with some "information" that I could quibble with -
is the MPA's site at http://mpa.org/copyright_resource_center/faq. It has
links to resources for music librarians and educators that are good.

Specific answers -

(1) The heck it isn't. You make an arrangement of a copyrighted work, you
can get sued. If you are sued, you will lose. Sorry.

If he's selling it the damages would be higher. Unless he sells it, the
amount of damages would likely be too low for the copyright holder to bother
- I hope.

(2) Performing the piece isn't a copyright violation - as long as he's
looking at the original published parts. There are also mechanical and
broadcast rights to attend to. (Jonathan notes that "Performance/broadcast
rights would obviously be handled by the radio station." - this is right,
it's their problem.)

OTOH, Jonathan also notes that "[a]ctually, I am playing my own arrangement.
It is pretty much based on the original flute part with a few small
modifications for technical/musical reasons." If he's written something out
on paper, whether by hand or on a computer, it's every bit as much a
copyright violation as a photocopy. That's an observation, not a value
judgment.

One can argue that it's not "fair" for the Russian gov't to assert copyright
in long-dead composers, esp. ones whose works were thought at one time to be
in the public domain. I would be one of those people. (That's a value
judgment, not an observation.)

As far as "fair use" goes, this isn't.

kjf

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