Klarinet Archive - Posting 000189.txt from 2009/02

From: Michael Nichols <mrn.clarinet@-----.com>
Subj: Re: [kl] Derivative Works
Date: Mon, 09 Feb 2009 01:06:57 -0500

On Sat, Feb 7, 2009 at 6:01 PM, Kevin Fay <kevin.fay.home@-----.net> wrote:

> 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.

I see what you're saying, and your reading of these guidelines is
definitely the conservative approach. Still, I'm not thoroughly
convinced that these guidelines were drafted with the intent to
prevent legitimate purchasers of sheet music from augmenting their
purchased copy with a single duplicate page for the purpose of
postponing a page turn. The reason why I say that is that "permitted
use A-3" states:

"3. Printed copies which have been purchased may be edited OR
simplified provided that the fundamental character of the work is not
distorted or the lyrics, if any, altered or lyrics added if none
exist."

It seems to me that attaching a single duplicate page to a purchased
copy to make the purchased copy easier to use is, from a practical
standpoint, more accurately described as "simplifying a purchased
copy" than as making a new copy, so long as the duplicate page remains
with the purchased copy (making it conceptually a part of the
purchased copy, as modified by its owner). It would also seem to me
that this "permitted use A-3" must entail more than simply making
one's own original markings on the physical copy purchased, because
otherwise there would be no reason for A-3 to describe a "fair use."
Simply making one's own original scribblings on the same piece of
paper isn't even a "use" of the copyrighted material at all.

Moreover, the terms "edit" and "simplify" appear to suggest more
drastic actions that would likely involve reproducing at least part of
the material on additional pages, such as transposing a song to
another key to accommodate a singer's vocal range or slightly
reworking a difficult accompaniment part to make it more playable.
And there would seem to be little point to simplifying a piece of
music if not for the purpose of performing it. So I would think that
A-3 would permit the sort of page-turn copies Lelia is describing
(where you copy a single page to use in conjunction with your
purchased original to postpone a page-turn), which would seem to be
pretty harmless from a publisher's standpoint, especially if you're
already paying a performance royalty to perform the work! (Indeed,
the publishers have an incentive to allow musicians to do what they
have to to make the music readily performable--happy musicians mean
more performances, which means more royalties!)

But I know better than to claim I'm right about this....the music
publishers might very well think otherwise, and they drafted these
guidelines! :-) (although, as I said in my previous post, the MTNA,
which apparently had a hand in drafting these guidelines as well,
thinks page-turn copies are OK).

Note, however, that A-3 would not apply to rental music, because there
you're not dealing with a purchased copy (since A-3 specifically says
"purchased").

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