Klarinet Archive - Posting 000000.txt from 2009/04
From: Oliver Seely <oseely@-----.edu>
Subj: RE: [kl] Derivative Works
Date: Thu, 02 Apr 2009 11:27:01 -0400
Hang on. I think fair use covers making a copy=20
for personal study if a person gets the original=20
copyrighted work from a library or any other=20
source. The section quoted from U.S. Copyright=20
Law leaves open the question of who owns the work=20
of which a copy is made. I don't think it is an=20
infringement of a copyright to make a personal=20
copy of a piece of music from a band to which I=20
belong for the purpose of "scholarship, or=20
research". I figure that when I use those=20
copies, alphabetized as they are in a 3-ring=20
binder, in a performance, I'm probably violating=20
U.S. Copyright Law. One of these days the=20
Copyright Shock Troops will descend upon me=20
during a concert in the Marina High School=20
multipurpose room and then woe will be me. 8-) Comments, anyone?
Oliver
At 07:44 AM 2/2/2009, you wrote:
>First, here is the "fair use" section of the
>law". Clearly, making a copy for personal study
>(when you already own a duly paid-for copy) falls
>under the terms of this clause.
>
>Second, you did not show me a single case to
>support your claim that it does not. My bet is
>that one does not exist.
>
>--Jonathan
>
> >=A7 107. Limitations on exclusive rights: Fair use40
> >
> >Notwithstanding the provisions of sections 106
> >and 106A, the fair use of a copyrighted work,
> >including such use by reproduction in copies or
> >phonorecords or by any other means specified by
> >that section, for purposes such as criticism,
> >comment, news reporting, teaching (including
> >multiple copies for classroom use), scholarship,
> >or research, is not an infringement of
> >copyright. In determining whether the use made
> >of a work in any particular case is a fair use
> >the factors to be considered shall include -
> >
> >(1) the purpose and character of the use,
> >including whether such use is of a commercial
> >nature or is for nonprofit educational purposes;
> >
> >(2) the nature of the copyrighted work;
> >
> >(3) the amount and substantiality of the portion
> >used in relation to the copyrighted work as a
> >whole; and
> >
> >(4) the effect of the use upon the potential
> >market for or value of the copyrighted work.
> >
> >The fact that a work is unpublished shall not
> >itself bar a finding of fair use if such finding
> >is made upon consideration of all the above
> >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=
almost
> >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=
Section
> >110 of the Copyright Act - basically performing for students in a=
classroom.
> >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=
the
> >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=
bootleg
> >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=
Dole
> >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=
to
> >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=
law
> >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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