Klarinet Archive - Posting 000012.txt from 2009/02

From: "Kevin Fay" <kevin.fay.home@-----.net>
Subj: RE: [kl] Derivative Works
Date: Sun, 01 Feb 2009 16:22:12 -0500

Jonathan Cohler followed up:

<<<Sounds like we are in agreement then:

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

are not "preparing derivating works.">>>

Correct.

<<<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.">>>

Absolutely not. Making a photocopy of a "single performable unit" is almost
certainly never fair use, even in an educational (classroom) context.

Here, you didn't make a photocopy - you did it by hand or computer. This
doesn't matter. Changing notes/articulation/octaves doesn't make any
difference - it's still a copy.

If you changed enough of the piece - added enough "originality" so that
your copy becomes a derivative work - your copy is an arrangement made
without prior permission. This is worse.

<<<Performance rights are a separate issue, of course.>>>

Yes indeed, unless you fall into one of the enumerated exceptions in Section
110 of the Copyright Act - basically performing for students in a classroom.
If you charge cash for tickets, probably not.

<<<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.>>>

The law of gravity seems insane too, right after you've just fallen down the
stairs. It's still the law.

It's true that most all of this activity flies under the radar, usually
because there's not enough money involved for the MPA to get excited. Most
shoplifters don't get caught either. Doesn't mean that shoplifting is OK.

There's lots of discussion in the archives over whether making a particular
photocopy or not will lead to Bad Things Happening To You. A junior high
school student playing a solo at the festival from a photocopy might get
scolded, or even disqualified. More prominent people playing off of bootleg
copies get more attention. Does the Boston Pops count? See Dan's note at
http://test.woodwind.org/Databases/Klarinet/2003/06/000141.txt.

As a practical matter, the copyright enforcers don't drop a complaint on a
violator; they send a nastygram called a "cease and desist" letter. My
favorite example is the one that the Dole campaign got for using "I'm a Dole
man!" - you can read the exchange at
http://www.courttv.com/archive/legaldocs/misc/doleman.html. Given who you
are, what you do, and the fact that your concert information is now splayed
all over the Internet, there's a possibility that the holders of the
Prokofiev Sonata might send you a love note. Or not.

Unfortunately, damages for copyright infringement can be stiff. If found to
be making illegal copies of copyrighted works, violators can face fines of
$750 to $30,000 (statutory damages) and if the court finds willfulness, up
to $150,000 per infringement. If willful infringement for commercial
advantage and private financial gain is proven, fines can increase up to
$250,000 and/or 5 years imprisonment or both.

Is this "insane"? Dunno. Sometimes, as Dickens' Mr. Bumble notes, "the law
is a [sic] ass - an idiot."

kjf

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