Klarinet Archive - Posting 000150.txt from 2009/02
From: "Kevin Fay" <kevin.fay.home@-----.net>
Subj: RE: [kl] Fair Use
Date: Sat, 07 Feb 2009 20:19:02 -0500
Keith Bowen posted:
<<<No, as a real scientist I am having too much fun watching the wriggles. I
dare say the real lawyers here have the same feeling.>>>
Yes indeed.
I just again posted the link to the MENC/MPA/MTNA/NASM/NMPA guidelines T
http://www.menc.org/resources/view/united-states-copyright-law-a-guide-for-m
usic-educators; hopefully this link will work better. These guidelines tell
you what's safe - akin to driving under the speed limit.
Beyond these safe harbors, you become subject to some risk: specifically the
risk that the copyright holder will sue you and win. How much risk depends
on the specific behavior - in the analogy, how much over the speed limit you
drive.
Jonathan Cohler's use of the Prokofiev Flute Sonata could make for an
interesting law school exam. The basic facts:
1) Buy a legal copy of arrangement of the copyrighted work. (This leads to
a discussion of the Sonny Bono legislation that put the Russian composers'
works back under copyright - it's a statute with teeth, but no subsequent
case law that I know of.)
2) Mark up the purchased part with dynamics/articulations/octaves whatever.
(As I posted before, what's written on the purchased part doesn't matter,
it's all good).
3) Copy the altered sonata onto a fresh piece of paper, either by hand or
computer. (Can discuss whether the changes to a different
key/instrument/articulations etc. contain enough originality to be a
derivative work that could be separately copyrighted or just a plain old
copy without permission).
4) Perform in public. (At an educational institution for students? Charge
admission?)
5) Broadcast on radio. (Performance rights?)
Except for the performance rights, which even Jonathan admits needs some
permission or royalty, Jonathan is wrapping his course of action in the
mantle of fair use. The affirmative defense of fair use has been around a
long, long time. It has also been a mess for about as long. Section 107's
four-factor test is an attempt to codify existing jurisprudence;
unfortunately, it does a poor job at best. For example, there's no way to
square parody with them. Parody is a long-recognized fair use that has
saved Saturday Night Live a number of times; it's nowhere mentioned in the
statute.
For my class' exam, I'd change/add a few more nuggets to make it jucier.
Instead of being written by Prokofiev, I'd pull the tune from a Disney movie
songbook, and then have him (i) give the arrangement to his students, (ii)
publish it without permission, (iii) have his performance released on a
recording (iv) that gets played over the radio in a pizza parlor with
slightly over 7,000 square feet of floor space. Throw 'em a stack of blue
books, and ask who can sue whom for what.
So - at what point in this litany does the fair use defense stop working to
protect Jonathan? Theoretically, I'd put it at step 3 - by putting his
changes to paper, he's either made an unpermitted copy or an unauthorized
arrangement. From a practical perspective, however, the copyright holder
won't care.
This is where fair use gets interesting. As I said, the case law is a
jumbled mess, all over the map. One common thread, can be discerned, though
- as Jonathan so ably quoted, "show me the money."
A tenet in Section 107's four-factor test and the case law is that fair use
stops when the copyright holder loses money. (This was the Supreme's basic
holding in the Betamax decision.) I've told my clients many, many times
that lawsuits aren't about justice, they're about money. No one with a
brain brings a civil suit for damages unless the amount to be gained
outweighs the expense.
I don't think the Russian government will care if Jonathan makes an
arrangement of the flute sonata - they're too busy cutting off Europe's
supply of natural gas, which appears to be much more lucrative. While
hearing an unpermitted arrangement of his music ticked off Victor Herbert
enough to get him to found ASCAP, the Russian government probably won't care
about the radio performance either (assuming that they got their due royalty
from the radio station, of course).
The nub, I think, is the creation of an unpermitted copy for public
performance. If it's a faculty recital for dozens of people, I'm pretty
sure that it would fly under the radar. If performed at the Clarinet
Festival, it might get written up in The Clarinet; people may even want to
buy it. Copying for distribution is sure to make the copyright holder upset
- whether gratis for students, or even more if self-published for money.
(No "real" publisher would print it off without getting permission and
royalties worked out, of course.)
Two factors help classical musicians here. First, much of the stuff we play
is old. Generally, if written before 1923, pieces are in the public domain
and are therefore free game. Second, we tend to be poor - there's just no
pot of gold at the end of the rainbow for someone to sue for.
Back at the turn of the last century (1900, not 2000), sheet music was a big
business. It was the primary means by which music was distributed. Since
the advent of recording, though, most all of the money and therefore legal
activity has been in the recorded music arena. There's oodles of cases
where person A asserts that person B ripped off their song, never even
involving sheet music. ("My Sweet Lord" sounding like "He's So Fine" cost
George Harrison more than half a million.)
One last observation. The copyright law isn't about music at all; it's
about ink on paper (or more precisely in the 21st century, the transmission
of intellectual property on tangible media). If Jonathan traced a set of
architectural drawings without permission, modifying some of the cosmetic
features of the building along the way, he'd be having this conversation
with his lawyer, not the listserv.
kjf
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