Klarinet Archive - Posting 000423.txt from 2009/01
From: "Kevin Fay" <kevin.fay.home@-----.net>
Subj: [kl] Derivative Works
Date: Sat, 31 Jan 2009 18:26:18 -0500
If you are a composer or arranger, or for some sick reason are otherwise
interested, read on. If not, just hit "delete."
Must also add a disclaimer; I cracked a cold one before writing this off the
top of my head at home, so you won't find extensive citations. Prof. Nimmer
already wrote the book - this is the Reader's Digest version.
Jonathan Cohler asked:
<<<what is the definition of "prepare derivative works">>>
Believe it or not, the Wikipedia has a pretty OK article on it. See
http://en.wikipedia.org/wiki/Derivative_work. The author of the piece
appears to have a copyleft agenda, but the basics are there, including the
standard Mona Lisa example.
Jonathan has other good questions. I've regrouped them to make the
explanation easier. For all of these questions, an assumption is that he's
asking about a work currently under copyright; if it's public domain, you
can do pretty much anything you want.
<<<If someone plays it on a similar but not identical instrument to that
listed in the score is that "preparing a derivative work"?>>>
No, because it's not fixed in a tangible medium. If not in the public
domain, however, you *will* have to worry about public performance rights,
no matter what instrument you perform it on.
<<<If someone changes an articulation (or other) marking is that "preparing
a derivative work"? If someone changes an octave of a note is that
"preparing a derivative work"? If someone makes notations in their part is
that "preparing a derivative work"?
Nope. You're marking up your part. This is no different than scribbling in
the margins of a book. Knock yourself out. Since you own the piece of
paper that the music is printed on, anything you want to do *to* that piece
of paper is fair game.
<<<And if someone makes so many notations in their part that they decide to
copy it over onto a fresh sheet of paper for their own use, is that
"preparing a derivative work"?>>>
Bingo!
This is the "aha" moment - copyright is triggered BECAUSE YOU'VE MADE A
COPY. Copyright is quite literally the right to make a copy; it's that
easy. It doesn't matter if you copy by hand or use a machine; the copyright
law long predated xerography.
Your copy could be a derivative work if the changes you made to it have
enough "originality" to be a separately copyrightable work. The classic
example is an arrangement of another songwriter's song. The arranger needs
permission (which may require payment of a royalty); they can also get a
copyright on their arrangement.
If the copy lacks enough originality to be separately copyrightable, though,
it's just a copy (like a photocopy).
If you don't obtain permission, the key to whether you have any pecuniary
liability to the copyright holder is what you mean by "for your own use."
Your use as in playing at home? Theoretically you would be liable, but as a
practical matter no one's going to sue over that. If your use is to play it
in public, esp. where people charge for admission, you have a problem. If
you try to publish it, you have a Big Problem.
<<<My reading of the cases that I have seen, however, would indicate that
the answer to all of these questions is NO, or if it is YES, then it
falls under the Fair Use and other exemptions in the copyright law.>>>
Fair use - especially in the music context - is not as extensive as most
folks believe. I've posted on this years ago, see
http://test.woodwind.org/Databases/Klarinet/1998/08/000080.txt
http://test.woodwind.org/Databases/Klarinet/1998/08/000144.txt
http://test.woodwind.org/Databases/Klarinet/1998/03/001441.txt
http://test.woodwind.org/Databases/Klarinet/1999/05/000099.txt
Copying snippets for academic critique is what it's all about. Parody, too.
Photocopying entire works is almost never fair use, as it deprives a sale
and therefore verboten without permission.
kjf
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