 The Clarinet BBoard
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Author: Brian
Date: 2002-05-20 09:53
I bought the full score to a piece several years ago. The piece is now out of print. Is it legal for me to write out the solo part and condense the full score to piano accom. and perform on a recital? I will, of course, not sell or record the piece, if that makes any difference.
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Author: Mark Charette
Date: 2002-05-20 12:37
Short answer in the US - if the piece is still under copyright, no. Out of print is meaningless to the term of copyright.
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Author: rmk
Date: 2002-05-20 13:15
Wouldn't this come under the "fair use" doctrine?
After all, he is not going to sell it. If there are performance royalties involved, assuming the hall he is playing in doesn't have a BMI or ASCAP license (highly unlikely), then he could contact the appropriate organization and send in his $25 or whatever.
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Author: Mitch A
Date: 2002-05-20 14:15
I can't imagine every performer in every little gin joint sending in a few dollars just to tickle out a fast "Misty". Most of this stuff is ignored. My sax group performed a new arr. of "When I'm Sixty-Four" at a recent concert. The arranger didn't even recieve a return phone call when he made an inquiry to the publisher about it. I feel they just can't be bothered with the small stuff.
Oh, look. A police car is parked in front of my hou...
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Author: Mark Charette
Date: 2002-05-20 18:45
rmk wrote:
>
> Wouldn't this come under the "fair use" doctrine?
No. It's a derivative work. It has nothing to do with the performance or recording of the work in question.
Performance of a brief excerpt for demonstration/education is fair use of copyrighted work (in the USA only - many countries do not subscribe to the "fair use" doctrine). Rewriting/arranging does not come close to falling under fair use.
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Author: Mark Charette
Date: 2002-05-20 18:47
A new arrangem,ent is a derivative work, and if used successfully the arranger will receive a notice from the legal department of the publisher. There's no doubt about that.
Bars, hotels, et al. send in money every quarter to the proper agencies to cover the bands playing "covers". That's "the way it is".
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Author: Stéphane
Date: 2002-05-20 21:48
FYI. We have an organisation in France called the "SACEM" which is French for Authors, Composers and Music Editors Society. They are responsible for collecting money from whatever and whoever broadcast music to the general public, that includes radio station, concert hall, television, movie theatres, shops, discos, one-shot events, etc. The money collected is then dispatched to the beneficiaries according to a scoring table based on different criteria (popularity, etc.). The SACEM in France in the music world is almost as powerful as the IRS in the US!
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Author: diz
Date: 2002-05-21 01:50
In Australia - the "copyright police" will even do raids on hairdressing salons, coffee shops and fine owners if they play CDs, tapes (whatever) without authorisation.
Copyright is strictly monitored and it is as it should be.
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Author: Kat
Date: 2002-05-21 03:16
Not only copyright, but "public performance." ASCAP (not inherently identical to copyright) rules (nearly) all the airwaves in the U.S. I work in the music department of a bookstore (national corporation), and the whole corporation is coming under fire and is only allowed now to play cds for which we've paid ASCAP. My problem with this is that DOESN'T ASCAP MAKE MONEY WHEN A CD IS SOLD????? We're there to promote the music, not inhibit or censor what customers may buy...
Katrina
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Author: Mark Charette
Date: 2002-05-21 12:25
Kat wrote:
>
> My problem with this is that DOESN'T ASCAP
> MAKE MONEY WHEN A CD IS SOLD?????
No. ASCAP pays performers when their music is played. There's a formula used to allocate the money paid to ASCAP. ASCAP has nothing to do with the sale, only the public broadcast of the recorded music.
Whether or not ASCAP fairly divides the monies collected is a completely different problem.
There's no censorship whatsoever in this kind of arrangement. Perhaps you need to check your dictionary on the meaning of such a serious word.
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Author: Kat
Date: 2002-05-21 17:18
Ok, Mark, so perhaps I was a little over-zealous. Censor probably wasn't the right word...  I think I was more on-target with "inhibit."
I'm still baffled as to why a record store's playing of cds SHOULD be regulated by ASCAP...
Katrina
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Author: Dee
Date: 2002-05-21 18:20
For out or print works, contact the copyright holder and get permission to copy or make arrangements or whatever.
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Author: Mark Charette
Date: 2002-05-21 22:44
Kat wrote:
>
> I'm still baffled as to why a record store's playing of cds
> SHOULD be regulated by ASCAP...
Public playing of recordings isn't "regulated" by ASCAP - you are free to pay the performers and the recording company directly if you wish for the rights to broadcast or play the recording in pubmic. ASCAP, BMI, and SESAC were formed to make it easier to get the money to the recording artists - you pay them, and they pay the artists.
Or so the theory goes. As in most cases, the theory is better than the practice. But in any case, you have a statutory right in the US to play recorded music, provided you get permission of the copyright holder(s). However, the statutes allow for the collection of a fee, and most performers need that money.
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Author: Brian
Date: 2002-05-21 22:44
Thanks for everyone's input. Actually, one of the reasons I asked about this is because I did contact the company that holds the copyright on the piece in question, and never heard back from them.
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Author: Mark Charette
Date: 2002-05-22 02:02
Brian wrote:
>
> Thanks for everyone's input. Actually, one of the
> reasons I asked about this is because I did contact the company
> that holds the copyright on the piece in question, and never
> heard back from them.
Unfortunately that doesn't mean that anyone can create a derivative work.
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Author: RogerM
Date: 2002-05-22 20:58
While I am a lawyer, I do not do copyright law.
Mark
Is there a copyright vioaltion when you copy a cd onto your computer?
Is there is, I am surprised that the appropriate bodies have not gone after Microsoft and other makers of the programs that allow this to be done.
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Author: Mark Charette
Date: 2002-05-22 21:06
RogerM wrote:
> Is there a copyright vioaltion when you copy a cd onto your
> computer?
>
> Is there is, I am surprised that the appropriate bodies have
> not gone after Microsoft and other makers of the programs that
> allow this to be done.
It depends on what you're copying, of course. A program has a set of statutes (one copy is allowed); music copyright has a different set of statutes. Copying a tape to a CD for personal use will not be prosecuted as specified by the DMCA (a statute) even though it is not legal (the lawyers created a grey area, the equivalent of knowing that if you drive less than 10 mph above the speed limit you won't be arrested - and they put it in writing!). When I had an Internet 'radio station' running I had to get explicit permission to make en "ephemeral" copy onto the computer and had to pay licensing fees for that to the appropriate agencies.
Therefore, programs that make copies are not illegal "per se" unless they attempt to circumvent copy protection schemes ... which then are prosecutable by the DMCA - in the US, of course ...
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Author: diz
Date: 2002-05-22 22:49
Mark, as always, your advice is erudite, informed and good quality - just like you!
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Author: Dee
Date: 2002-05-23 02:46
They have gone after the people who made it possible to trade copies from computer to computer though. Think of Napster. Now they have to pay some type of licensing or something.
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Author: Kat
Date: 2002-05-23 03:37
Mark,
For me this is all a weird tangly legal thing! That's why it's so great you're here with the advice...
Back to the ASCAP thing. Can you clarify why playing recordings in a record store is "public performance" when for all other legal situations (i.e. not allowing certain people to continually frequent the store when you know they're ripping you off), it's private property? i.e. if I invite loads of people over to my house (private property) and play cds for them, would that *technically* fall under public performance?
Katrina
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Author: Mark Charette
Date: 2002-05-23 03:46
Kat wrote:
>
> Back to the ASCAP thing. Can you clarify why playing
> recordings in a record store is "public performance" when for
> all other legal situations (i.e. not allowing certain people to
> continually frequent the store when you know they're ripping
> you off), it's private property?
It's a publically accessable place (generally open to the public).
> i.e. if I invite loads of
> people over to my house (private property) and play cds for
> them, would that *technically* fall under public performance?
Under certain circumstances it could ... but in most practical purposes it doesn't (assuming it's a private party and you're not charging a cover).
It's a really tricky thing ... can you rent a video and then legally show it in a public area in a college dorm for 10s or 100s of people? I've read lawyers arguing it either way. If you charged money (even just a buck each) would it be legal?
Even if one court decides one way, another court at the same level can decide differently on a case with basically the same facts, and a higher court could reverse either or both decisions.
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Author: Mark Pinner
Date: 2002-05-23 11:31
Just play it. If you make a million give them a 10% cut. If, like most musicians you make nothing also give them 10%.
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Author: Kat
Date: 2002-05-23 22:55
Hey, Mark,
Thanks for all the info. One further question, however...
If a record company representative gives us a promotional copy of a cd to play in the store, are they implicitly giving us permission to play it in the store legally? (vis-a-vis ASCAP and all...)
I'm still a little confused about that...
Katrina
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Author: Mark Charette
Date: 2002-05-24 06:12
Kat wrote:
>
> Hey, Mark,
>
> Thanks for all the info. One further question, however...
>
> If a record company representative gives us a promotional copy
> of a cd to play in the store, are they implicitly giving us
> permission to play it in the store legally? (vis-a-vis ASCAP
> and all...)
>
> I'm still a little confused about that...
I'm not a lawyer so I can't advise you on that. The chances are that your record store already pays a license fee to BMI, ASCAP, and SESAC (you need to pay all three in most cases to cover all the different artists). Ask the store owners about that.
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Author: Mark Charette
Date: 2002-05-24 06:14
This one gets asked a lot. Here's the entire section from Title 17 (The US Copyright Act):
§ 107. Limitations on exclusive rights: Fair use38
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.
-----------------
So, as you see, Fair Use is in most cases "it depends" ... there's no set number of notes, words, etc.
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