Klarinet Archive - Posting 000001.txt from 2009/02

From: Jonathan Cohler <cohler@-----.org>
Subj: Re: [kl] Derivative Works
Date: Sun, 01 Feb 2009 10:23:17 -0500

Sounds like we are in agreement then:

1. Instrument change
2. Articulation marks
3. Octave changes

are not "preparing derivating works."

Making a personal copy of a work for your own study purposes
(especially because your original copy is so marked up as to make it
unreadable), when you have purchased and own a properly licensed
copy, is certainly "fair use."

Performance rights are a separate issue, of course.

But if you are claiming that, because I put my personal copied part
on the stand when I perform, instead of the original illegible marked
up copy, that I am therefore violating the copyright, that's insane.

Show me one such case. Where an individual who owns a purchased copy
of same piece, but chooses to use his own personal copy of it on the
music stand, and is then successfully prosecuted for copyright
violation. No way.

Every school/musician/orchestra/presenter in the world would have
been prosecuted by now.

Best regards,
Jonathan

At 3:26 PM -0800 1/31/09, Kevin Fay wrote:
>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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--
Jonathan Cohler
Artistic & General Director
International Woodwind Festival
http://iwwf.org/
cohler@-----.org

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