 The Clarinet BBoard
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Author: derf5585
Date: 2015-01-11 23:38
Lets say the band librarian buys a piece of music with only 3 third clarinet parts. Is it OK to copy a third clarinet part and give it to the forth player.
fsbsde@yahoo.com
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Author: WhitePlainsDave
Date: 2015-01-12 00:52
Your asking for a yes and no on laws that vary based on locale, and/or may be subject to international copyright rules, case law, and this "brave new world" we live in, in which music is digitized and read from computer screens, rather than "copied," in the classical definition of it being reproduced on another page of paper.
I can give you the moral rule, which is to not do anything that would deny the artist and publishers their lawful revenue stream or violate terms of the license by which you purchased your copies. In your case, you presumably purchased a license to use, as many times as you want, no more than 3 concurrent music parts, even if 70 people manage to crowd around the music stands on which they sit. Making a copy and creating a 4th denies the artist and publisher of revenue, as they never agreed to allowing you to use a 4th copy. Of course, making extra or backup copies may be permitted by the license, the latter not uncommon in software licensing.
It's always best to secure written permission before extending beyond the limits of a license. If anything, it's more likely to NOT be okay, than just fine, with those in the financial chain, for you to take such actions behind their back. It's not just the letter of law here but the principles of revenue flow that cases are decided on. For example, destroying 2 of the orignals, but in exchange placing one first on a transparency, and placing it on an overhead projector for 50 students to read--is probably not lawful because it goes against the written or implied terms of the license, or the spirit of how such licenses are normally delt with in an industry.
Still more, you may be able to get a reduced rate for the marginal additional copies you need, rather than having to buy the whole set again, or if you're lucky, the written right to make that 4th copy.
Its important to contrast this with the examples of a prior thread where the copies, which may too not be to the letter of the law, atleast don't deny revenue stream, and in fact protect it, by only marking and destroying the copy after performance, returning the pristine original to those you rented it from.
A good rule of thumb is to remember than your transaction doesn't make you an owner of the music, just the owner of a limited license to use the music under certain explicit and implied conditions.
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Author: kdk
Date: 2015-01-12 03:15
The simple answer is, no, it isn't legal *if the piece is under copyright protection.* You're supposed to buy a fourth copy of the part.
Most of the time, if you try to buy a part, you will be given permission to make an "emergency" copy to use until the one you've ordered arrives - which for some publishers may be after the performance.
Will you ever be caught and prosecuted for this? It's hard to imagine it - the lost payment is much too small to justify the expense of prosecuting the case.
Karl
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Author: tictactux ★2017
Date: 2015-01-12 04:49
many "industrial" band scores contain only so and so many copies of each part. If your band doesn't fit the average the publisher has calculated, then it's advisable to ask for extra copies or the permission to make your own.
As a practical appoach - if the score contains say 50 parts all in all, and your band has no more than 50 players, go ahead and copy as needed - no one is going to check if you really play the notes on your "original" on your stand. Publisher and artist got compensated for a 50-strong orchestra, and each player has an original, so that should satisfy the law. Just make sure all extra copies are destroyed after the concert.
(at least that's what is made here - scores are considered "site license", you aren't charged for extra copies nor are you getting a discount for parts you don't need.)
--
Ben
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Author: Ed Palanker
Date: 2015-01-12 06:11
I may be wrong but it was my belief that as long as you pursued the music in the first place you are able to make an extra copy for the performance only. But some publishers sell single parts so you should contact them first and ask if they will sell you an extra part. If they don't sell extra parts ask permission, as and educational institution and a non profit, permission to copy the part for this performance. I used to do it all the time when I had a clarinet choir at Towson Universly. Most publishers gave permission.
ESP eddiesclarinet.com
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Author: Wisco99
Date: 2015-01-12 11:12
I am not a lawyer, so I can not give legal advice. I did work for 2 music publishers, one of which is the largest print publisher in the world. Part of my job dealt with copyrights. The law is constantly changing. The person who wrote the music often gets nothing and owns nothing. Think of the Beatles, they have never owned the rights to their songs, even though they wrote them, and their names are printed on them. Owning the copyright, a catalog, and the various rights is a lucrative business. A print publisher may obtain the rights to print the song in a certain format. An Irving Berlin song may not be mixed in a folio with other composers or songs, only Irving Berlin if you have the rights, at least that is what I came across back in the 80's. It is a very complex area. I know that people often copy parts and the odds are they will not be caught. One publisher used to print on the bottom of the music that copying their music destroys the income for the people who created it. Kind of a guilt trip thing. What if you were the publisher, or owned the rights to the music. Would you want to let others steal what legally belongs to you? No advice given here. You are dealing with federal laws. No easy answers.
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Author: davyd
Date: 2015-01-17 05:25
Let's say the band librarian is asked to pull a piece from the file cabinet, and finds that the piece is out of print, which means that additional parts can't be purchased. Is the law any different?
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Author: WhitePlainsDave
Date: 2015-01-17 07:31
Here again, it's not cut and dry. On the one hand, making copies in this case isn't denying the copyright owner revenue for that they choose to no longer sell, assuming the copyright hasn't expired, which if it has, the work is in the public domain, and you can copy to your heart's content.
On the other hand, consider the fact that with every transaction effected, buyer and seller both incur risk. There's risk that with a product in hand, you might not pay in full, and their's risk that you as purchaser are buying from a Firm about to go "belly up," or discontinue the product and/or the availability of spare parts for it, or not stand by it and its warranty: be those parts musical scores or a carburetor. Worse, buy stolen goods even unknowingly, and the courts will order you to surrender them. Good luck litigating the seller for what you spent.
However your band came to own those parts, through original purchase, or transfer of ownership, their ability to be replaced was something, at least by legal theory, authorized people with your band (assuming its a legal entity like a school, corporation, etc.) had a right to investigate before purchase, or if donated, taking ownership of, so as to make an informed decision on the score's worth, with respect to factors like the ability to secure lawful replacement parts should the need arise.
Some institutions and people, whether its legal or not is another question, scan parts into digital form, never to be used unless the original is lost or destroyed. Is this legal? It depends upon the terms of purchase, the industry, and other factors. It is, after all, not the publisher's fault that the pristine copy of a part you received at purchase was subject to wear and tear, theft or misplacement.
There are some basic rights of the consumer of copyrighted product. As a primer, you might want to dig further on, say, Wikipedia. But just because sellers of music make business decisions to no longer carry works does not necessarily negate their rights to prohibit you from making copies provided copyright is still in effect.
I'll tell you what davyd, provide your attorney with proof the sellng and authorized publisher ruined your copies, and have his certified letter to the company go unanswered after "reasonable" time, and then, I'd say you're pretty much indemnified in withstanding a copyright challenge for having made photocopies of that the seller ruined. ![[wink]](http://test.woodwind.org/clarinet/BBoard/smileys/smilie3.gif)
You may want to consult with an attorney about this specializing in intellectual property law. After rightfully charging you for their time, they can answer your questions, likely (and I don't blame them) with the answer, "well it depends."
Post Edited (2015-01-17 07:39)
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Author: GeorgeL ★2017
Date: 2015-01-18 19:58
As someone who was an attorney specializing in intellectual property (mainly patents), but who has been retired for 10 years and no longer is a licensed attorney, I can offer the following no-longer-legal opinion:
If you copy an entire piece of copyrighted music (which means it is not 'fair use') without the copyright owner's permission,you are infringing the copyright. The rules are a bit kinder to educators who copy for classroom use.
Copyright infringement, unlike most other types of legal injury, has statutory damages. If you copy a $3 part, under tort law the damages might be $3, but under copyright law, the statutory damages could be several hundred dollars. I don't know if they have ever been applied in the situation under discussion.
It doesn't take a rocket scientist to see that most music groups probably copy music. Go to any band web page and find a picture of the band, count the number of music stands in front of clarinet players, and if that number is greater than the number of parts to your music, they have probably made copies. Have they been sued? No. Are the likely to be sued? No. Do music publishers want to irritate the people who are buying their music? No.
If someone decides to scan a library or only use copies while keeping the orignals pristine, I suggest they do not discuss that on a public forum. A paper copy is not expected to last forever; that's one reason why music we played years ago is often still sold.
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Author: kdk
Date: 2015-01-18 20:09
George, from your training and experience, what is your no-longer-legal opinion about the copyright status of a modern edition of a long-dead composer's music, either a reprint of an older edition by a different publisher, or one that includes corrections to an older edition but no original musical changes. Some of those editions carry copyright notices.
In your (previous disclaimer noted) opinion, can Kalmus or Lucks, for example, reprint an old Breitkopf edition of a Tchaikovsky symphony, add bar numbers at the beginning of each staff and maybe correct a couple of misprints, and claim copyright protection for it?
Karl
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Author: derf5585
Date: 2015-01-18 21:31
As the op what I take of this thread is that every band and orchestra needs to hire a copyright lawyer.
fsbsde@yahoo.com
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Author: kdk
Date: 2015-01-18 23:52
If they want to stay legal. Except that even the copyright lawyers don't always agree. ![[frown]](http://test.woodwind.org/clarinet/BBoard/smileys/smilie2.gif)
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Author: WhitePlainsDave
Date: 2015-01-19 00:40
Derf5585:
If you thoughts as to retaining council implies that musical institutions regularly violate copyright laws then I hear you.
If your thoughts are that publishers, biting the hands that feed them, regularly spend money to litigate copyright infringers, and/or that violators regularly get caught, which I don't think is the case, then I might suggest not spending the money to keep an intellectual property rights lawyer on retainer.
Musicians, who are artists no different than the composer's works they play that are copyrighted, of all people, should appreciate not having revenue denied, be it by photocopy, or recorded soundtrack that puts musicians out of work.
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Author: tictactux ★2017
Date: 2015-01-19 00:45
that begs the question, who makes an composer famous, the musicians or the lawyers?
What annoys me in this matter is that no one has to ask the performers of a piece for permission to publish a video or a CD of their concert, provided they have the blessings of the composer.
--
Ben
Post Edited (2015-01-19 01:19)
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Author: Mark Charette
Date: 2015-01-19 01:00
In the USA performances have a copyright ... most often signed over by the group manager or owner when it applies to amateur groups.
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Author: derf5585
Date: 2015-01-19 01:44
So now amateur groups have to hire a "group manager"
fsbsde@yahoo.com
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Author: WhitePlainsDave
Date: 2015-01-19 01:56
FWIW, my example of recorded soundtrack over live musicians came from issues the musicians union had/have with Broadway show producers over the need for live musicians at a performance, versus lawful recordings that perhaps other professional (and likely union) musicians consented to have recorded, and rebroadcast either in a private or public setting, that didn't otherwise violate union rules.
The rebroadcast of that recording might be fine, say at home, but not acceptable for example in public performance venues like Broadway, where such pre-recordings are limited by union negotiations, so as to keep musicians at work.
Post Edited (2015-01-19 02:01)
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Author: WhitePlainsDave
Date: 2015-01-19 02:52
Another thought:
It's frustrating when you're more than willing to fork over money to buy more of or replace something, like music scores that those with rights to its sale simply decide it in their best interest to know longer make available...which seemed the premise of davyd's query.
Maybe it's even more frustrating to know that the seller took a work out of print, otherwise still under copyright, not because they were no longer making money printing and selling the work, or out of business, but because they figured that by withholding supply, the price of the works already out there (which sure enough the publisher might have 300 stocked away) may increase, and more profit is forecast to be made this way than in selling parts from the work as needed.
Witness works of visual art going up in price as the known artist approaches the sunset of their life (predicitions of limited supply.)
The business that does this, in some ways exhibits monopsonistic power, or, as the opposite of monopolistic power where there's one buyer, monopsonies involve one seller, who can control supply (and hence price) because he/she is the only "supplier in town." They do risk earning a bad reputation though by effecting such practices.
But government breaking the publishing company up or forcing them to sell more with anti-trust legal mechanisms is quite the challenge and debatable as it regards good policy . The copyright and patent systems under which such temporary monopsonies are created are themselves based on the idea that if we don't grant limited rights to exclusively sell that which a creator makes, then creators will lose the [financial] incentive to innovate. At least with a patentable product, the creator must make public their design, so that others can build upon it.
Balances like these exist commonly in the pharmecutical industry when a life saving drug is invented or simply sold (e.g. flu vaccine) by a company. If government forces them to make it available at reasonable cost in the interest of the higher good of saving lives, companies will think twice about spending money on R&D. Lack of innovation or existing drug supply leads to a lack of improvement in the quality of life: also in the higher good of society. Government sometimes pays a subsidy to pharma so people can have medication, and pharma is motivated to continue to invent. Examples of this more recently came not so much with, say, new cancer drugs, but with politicians insuring that underproduction of flu vaccine and its shortages didn't occur in future winters, by monitoring, and where indicated, subsidizing pharma's risk in such endeavors.
And of course people differ on how much government should interfere with free enterprise.
Not so much in music printing, but in other areas of life, it is precisely because of the risk of discontinuance that people and businesses often buy up stock of a mission critical component they've decided to commit to, hedging risk that it may not be available in the future. Defense contacts often stipulate that a market for part "X" must always exist until the weapon its deployed in is decommissioned.
Welcome to commerce. Risks to buyer and seller both exist. Cessation of printing a copyrighted work doesn't normally you give photocopy rights, just rights to tell the publisher, "I'm going to remember that and share my story with others."
Companies have their frustrations too. They compete and innovate, succeed, become big if they're lucky, and sometimes feel the prize for doing so is government breaking them into pieces because they've gotten too big and control a market.
Post Edited (2015-01-19 03:00)
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Author: GeorgeL ★2017
Date: 2015-01-19 19:00
“Can Kalmus or Lucks, for example, reprint an old Breitkopf edition of a Tchaikovsky symphony, add bar numbers at the beginning of each staff and maybe correct a couple of misprints, and claim copyright protection for it?
I’ve wondered about that issue (thinking Sousa, not Tchaikovsky) ever since I started playing in community bands.
What you describe is a ‘derivative work’ and the applicable law is 17 USC 103(b), which translates as: Copyright in a derivative work only covers the changes.
The definition of derivative work in 17 USC 101 includes: “A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship.” The standard of what represents ‘an original work of authorship’ is really low.
Correcting misprints would put the music back in the state which Tchaikovsky originally wrote, so that would not be a derivative work.
I don’t know if numbering the music lines or measures would be an original work of authorship. More than likely, the music publisher would say 'yes' and the copier would say 'no'. But which one of those two parties is in a better position to afford a lawsuit?
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The Clarinet Pages
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