Klarinet Archive - Posting 000149.txt from 2009/02

From: "Kevin Fay" <kevin.fay.home@-----.net>
Subj: RE: [kl] Derivative Works
Date: Sat, 07 Feb 2009 19:01:10 -0500

For some folks on the list, copyright issues are important - I'm thinking of
classroom teachers who'd like to know the rules so they don't inadvertently
do something that will cost them their job. I'm friends with a lot of music
teachers, so I'm always happy to jump in and point them to the MPA's guide
("presented as a service" by The National Association For Music Education
(MENC), Music Publishers' Association of The United States, Music Teachers
National Association, National Association of Schools of Music and the
National Music Publishers' Association at
http://www.menc.org/resources/view/united-states-copyright-law-a-guide-for-m
usic-educators, among other places).

This is a somewhat unique document. When the 1976 copyright law revisions
were being worked on, the MPA negotiated these guidelines with the music
teachers' organizations, and collectively the groups lobbied their
congresspeople to have them read into the legislative history. Since
they're not in the statute itself, they do not carry the force of law - esp.
if your last name is "Scalia" - but a copyright holder seeking to punish
behavior that's within one of the guidelines' safe harbors will be pushing a
large rock up a steep hill.

The guidelines do state that "[there may be instances in which copying that
does not fall within the guidelines stated below may nonetheless be
permitted under the criteria of fair use." Nevertheless, one of the
"prohibitions" is pretty clear: "Copying for the purpose of performance
except as in A-1"; A-1 reads, "[e]mergency copying to replace purchased
copies which for any reason are not available for an imminent performance
provided purchased replacement copies shall be substituted in due course."

Michael posted:

<<<I think there's a good argument to be made that making page-turn copies
is fair use. It's an analogous scenario to time-shifting a broadcast TV
program by videotaping it or to your computer's making a cached copy of a
copyrighted web page. While you're technically making a copy, it's (at
least in theory) only a temporary copy, and the practical effect of what
you're doing is simply to facilitate an already legitimate use of the
material.>>>

I disagree. Making a copy for a page turn *isn't* fair use; it violates the
prohibition against "copying for the purpose of performance" that the MPA
got into the legislative history of Section 107.

This doesn't matter, though - except for one circumstance, I cannot imagine
that a music publisher would care about a page turn copy, certainly enough
to take the time to write a cease-and-desist letter or spend the money
required to write up and file a complaint. (No one gets a ticket for
driving 56 in a 55 zone either, unless they're doing something else stupid.)
Threatening to sue people makes them upset. Why upset a paying customer?

The one exception that I can think of is rental music for musical theater.
For whatever reason, those folks can be *very* touchy about any photocopying
at all, so they might well get ticked off enough to do something about it.
Perhaps it's because some "page-turn copies" ended up as lead sheets in fake
books.

kjf

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