Klarinet Archive - Posting 000019.txt from 2009/02

From: Jonathan Cohler <cohler@-----.org>
Subj: RE: [kl] Derivative Works
Date: Mon, 02 Feb 2009 09:44:49 -0500

=46irst, here is the "fair use" section of the=20
law". Clearly, making a copy for personal study=20
(when you already own a duly paid-for copy) falls=20
under the terms of this clause.

Second, you did not show me a single case to=20
support your claim that it does not. My bet is=20
that one does not exist.

--Jonathan

>=A7 107. Limitations on exclusive rights: Fair use40
>
>Notwithstanding the provisions of sections 106=20
>and 106A, the fair use of a copyrighted work,=20
>including such use by reproduction in copies or=20
>phonorecords or by any other means specified by=20
>that section, for purposes such as criticism,=20
>comment, news reporting, teaching (including=20
>multiple copies for classroom use), scholarship,=20
>or research, is not an infringement of=20
>copyright. In determining whether the use made=20
>of a work in any particular case is a fair use=20
>the factors to be considered shall include -
>
>(1) the purpose and character of the use,=20
>including whether such use is of a commercial=20
>nature or is for nonprofit educational purposes;
>
>(2) the nature of the copyrighted work;
>
>(3) the amount and substantiality of the portion=20
>used in relation to the copyrighted work as a=20
>whole; and
>
>(4) the effect of the use upon the potential=20
>market for or value of the copyrighted work.
>
>The fact that a work is unpublished shall not=20
>itself bar a finding of fair use if such finding=20
>is made upon consideration of all the above=20
>factors.

>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 almos=
t
>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 Sectio=
n
>110 of the Copyright Act - basically performing for students in a classroom=
=2E
>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 th=
e
>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 bootle=
g
>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 Dol=
e
>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 t=
o
>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 la=
w
>is a [sic] ass - an idiot."
>
>kjf
>
>
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--
Jonathan Cohler
Artistic & General Director
International Woodwind Festival
http://iwwf.org/
cohler@-----.org

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