Klarinet Archive - Posting 000078.txt from 2009/02

From: Ed Lowry <norcalclarinet@-----.com>
Subj: [kl] More on derivative works
Date: Wed, 04 Feb 2009 13:51:34 -0500

Well, I didn't go to Harvard Law School, electing instead to attend
what may be the only law school at a Junior University. (Dan will get
it right away, for others it may take awhile.)

Some thoughts occur to me on the continuing discussion of copyright law.

First, I think Jonathan's a bit off base on his "fancy words"
dismissal of the effect of burden shifting once a prima facie case is
established. If the issue is fair use or not fair use, then the
burden is on the defense to establish that its use of the work
constitutes fair use, once the owner of the copyright makes a minimal
showing that establishes the essential elements of a violation.

This minimal showing does not involve overcoming the contention that
all that is happening is fair use. Simply stated, it is the
performer who must prove he's not violating the law, and the holder
the copyright does not need to present any evidence (i.e. none, zip,
zilch) that relates to fair use, before the performer -- in answering
the allegation -- is required to show he comes under the defense.

Second, it seems a bit farfetched that the owner of the copyright
could prevent someone who has the original, paid-for sheet music in
front of him from playing the piece on an instrument not called for in
the score. The copyright lawyers among us (and I practiced criminlal
and environmental law, not intellectual property) might have an
answer, and if so, I would read it with great interest. Isn't the
gravaman (how's that for a fancy word?) of the copyright owner's
complaint that "you're using my 'song' to play 'your' music, and you
didn't pay me for it"? If the copyright owner can really control the
manner in which the piece is played, prescribing instruments, keys,
crescendos, and the like, what's to prevent her from establishing a
violation against a performer who simply does a lousy job playing the
piece? I would be in a lot of trouble!

Regards to all,

Ed Lowry
Sacramento

------------------------------------------------------------------
The 2009 Woodwind.Org Donation Drive is going on right now - see
https://secure.donax-us.com/donation/ for more information.
------------------------------------------------------------------