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Choralist discussions on Copyright Issues

Date: Wed, 11 Aug 1993 11:28:11 -0600
From: wahoofive@aol.com
Subject: copyright

102(a) Copyright protection subsists, in accordance with this title, in
original works of authorship...

[N.B. Interpetive musical marks would hardly, in themselves, constitute an
original work. Also, conscientious editions of early music represent
themselves as the composer's original intent, as distinct from
"arrangements" which may have original material inserted.]

103(b) The copyright in a compilation or derivative work extends only to
the material contributed by the author of such work, as distinguished from
the preexisitng material employed in the work, and does not imply any
exclusive right in the preexisting material. The copyright in such work is
independent of, and does not affect or enlarge the scope, duration,
ownership, or subsistence of, any copyright protection in the preexisting
material.

[My reading of this is that they can't prosecute me for copying notes they
didn't create from their edition. If I had photocopied for a cut-and-paste,
that would be something else, since they may have a copyright to the page
image.]

It still strikes me that we have a case of over-enthusiastic publishers
attempting to claim more copyright than they're entitled to. I am eager to
hear more views, and wish me luck that my Internet connection keeps
working.

----------------------------------------------
Date: Wed, 11 Aug 1993 12:49:29 -0600
From: "Robert Haskins"
Subject: Re: copyright

Allen H Simon writes:

> 102(a) Copyright protection subsists, in accordance with this title, in
original works of authorship...

Here's the rub, I think, as an editor is a kind of "author" (at least as
far as publishing law is concerned). The markings he adds, the layout,
clarification of notation (if that's an issue), rehearsal or measure
numbers (possibly -- Mark Gresham? Where are you when we need you!?) --
all of these are original contributions of the editor and hence protected
by copyright. If your copyist reproduced none of that, then indeed I think
it would be impossible to prove copyright was violated.

------------------------------------------
Date: Thu, 12 Aug 1993 09:38:16 -0600
From: dscatl!mgresham@merlin.gatech.edu (Mark Gresham)
Subject: Re: copyright

Sigh. Funny how conversations crop up in parallel here and in Usenet
newsgroups. Nevertheless...

>all of these are original contributions of the editor and hence protected
by copyright. If your copyist reproduced none of that, then indeed I think
it would be impossible to prove copyright was violated.

First, I'll preface with the statement that as one who has been burned by
people infringing on my own original compositions, I have little sympathy
for genuine copyright violators.

Second, I'll say that there are two parts to the questions above: 1) Has
copyright genuinely been violated? 2) Can one accused of infringement be
successfully prosecuted?

I don't support the "It's ok because I probably won't get caught" line of
thinking. But the reality is that many people (especially churches) follow
that mode of behavior. The assumed sequiter is "If I get caught, probably
no one will do much about it." Wrong on both counts. The classic case is
the Catholic Archdiocese of Chicago case where they lost mightily.

For the people who are willing to risk that their copying is either not
infringement or that they "won't get caught" there is the question of "can
I be succesfully prosecuted"?

In regards to new editions and arrangements of public domain works, the
Copyright Office has stated that "new matter may consist of musical
arrangement, compilation, editorial revision, and the like, as well as
additional words and music." this may include such things as "new
compilation, fingering, stress marks, and introductory material." So
editorial changes indeed are copyrightable. When you copy "by hand" from
a given score which is a copyrighted edition, how are you certain what is
public domain material and what is "new"?

Several examples for thought: Look at old G. Schirmer editions of, say,
Beethoven's piano sonatas. The notes themselves in some instances diverge
greatly from an "urtext" edition. Also, William Dawson was said to have
deliberately included certain "signature" intervals in has arrangements
which differed from the tune as found in the oral traditions in order to
catch infringers. The same kind of "signature" intervals (simply which
differ from the oral versions) appear in Copland's version of the "Simple
Gifts" tune.

Sometimes notes in a score may differ (pitch, rhythm, etc.) from earlier
versions of a work as matters of scholarship or research (example being
John Rutter's edition of Faure's Requiem) or as matters of practical
arranging (Hal Hopson's piano reductions for choruses from Handel's
Messiah).

Furthermore, some "very old" works are protected by copyright even though
they are hundereds of years old simply because they have never been
published before! A previously unpublished work which has never circulated
(never published) is protected when in the form of a published edition.
This means that you can't reproduce (even by hand copying) the published
score -- you can, though,go back to the manuscripts, do the research, and
create your own edition. :-)

One method public domain users use is a system of "most common denominator"
as a means of assessing what parts of any multi-edition work are public
domain, gathering as many editions together as are known and then copying
only those notes, etc. that are common to several editions.

Part of the reasoning behind this is the question of "source." If it can
be demonstrated that your only access to a particular work was through a
particular copyrighted edition, then you're just the hell out of luck when
it comes to prosecution, even if you think you're copying only those parts
that you believe are "public domain."

In essence, the burden in prosecution of infringement of a new edition is
one of demonstrating 1) access to the new edition (or lack of access to any
other) and 2) that elements of copying done show the new edition to be the
source.

---------------------------------------
Date: Fri, 13 Aug 1993 14:25:27 -0600
From: GILBERTN@WABASH.BITNET
Subject: Re: copyright

Do you know the details of the "classic" copyright case of the
Archdiocese of Chicago? Do you know of others? I have mentioned several
times to my colleagues at the Choral Journal that an article about those
cases could be very effective. There is little sense of conscience or of
fear regarding copyright, and one comment that often surfaces is, "Well, no
one prosecutes and no one gets caught." A clearly factual article in the
Choral Journal would arm the conscientious types--including, say, choir
directors whose supervisors expect them blithely to photocopy--and make
exciting "whodunit" reading in any case.

So this is an open request for someone to submit an article on that
topic to the Choral Journal.

-------------------------------------
Date: Sat, 14 Aug 1993 11:09:33 -0600
From: dscatl!mgresham@merlin.gatech.edu (Mark Gresham)
Subject: Re: copyright

I would love to put together an article on the subject, especially if I can
get my copyright attorney to co-author it.

I believe the opponents in the Chicago case were the Chicago Archdiocese
and GIA Publications. I would like to have some documentation in front of
me before presenting musch detail, but basically it was one of those "who
needs to license?" attitude problems (that you spoke about regarding
supervisors). The way I understand it, the Archdiocese had at one time a
license to reproduce (because it was less expensive for both parties) and
when time came for renewal they decided not to renew the license, but kept
on copying.

I have indeed caught infringers; in one case was very generous with
settlement where I should not have been (long story). I will guarantee you
I will never be so generous again. According to one of the people at
Hinshaw Music, some 20% of the choral music business is lost to illegal
photocopying. This has only become a problem of this magnitude in the last
10 years or so with the advent of plain-paper photocopiers. (Remember
those awful smelly Olivetti chemical-paper copiers?)

Because the magnitude of the problem has emerged so recently, you'll hear
people say, "Well! It wasn't that way in MY day!" Which is exactly what
one church music director said when I refused (as a professional copyist)
to transpose a Broadway tune for her chorus without written copyright
clearance. I also pointed out that in addition to copyrights on
"reproduction" that she also needed to know about "performance rights" for
presentation outside of a religious service. Copyrights are actually a
bundle of rights. Most people don't recognize the performance rights even
as much as reproduction rights. This is mostly true for two reasons: 1)
Music performed in the context of a religious service isn't subject to
payment of performance rights royalties (part of the "fair use" clauses),
and 2) those performing music in schools, colleges and universities are
often unaware that their institution pays annual blanket license fees to
BMI and ASCAP for performances within their institution.

It might well take two articles, yes? ;-> But it is a very, very
important subject. Composers do not earn a living off of commissions
alone, nor do publishers from selling paper; the performance rights are a
major piece of revenue as well as the reproduction rights (plus several
other rights which we need not address here).

----------------------------------------
Date: Tue, 17 Aug 1993 00:45:31 -0600
From: wahoofive@aol.com
Subject: Re: copyright

Mark Gresham writes:
>In essence, the burden in prosecution of infringement of a new edition is
one of demonstrating 1) access to the new edition (or lack of access to any
other) and 2) that elements of copying done show the new edition to be the
source.

It's the "and" in that paragraph that intrigues me. In scholarly editions,
editors are careful to bracket their editorial additions, so that it's easy
to tell what material is urtext (i.e. "preexisting"). Copying that material
would seem not to violate condition #2 above. In other words, if a copyist
uses one source, but uses only that material which the edition presents as
preexisting, is s/he in "flagrant" violation of copyright? In response to
Robert Haskins, I'd like to hear of a case where someone convinced a jury
that *measure numbers* were an original creation.

If publishers are deliberately inserting errors in order to catch copiers,
I'd like to know about that.

I'd like to hear more about "performance rights." From the recent messages,
I infer that every copyrightable element (even a trill) also is copyrighted
for perfomance purposes. Since we have to use some edition for every
performance, does that mean that we have to pay the publisher performance
royalties on every piece we perform, no matter how old, because some trill,
measure number, or other detail wasn't preexisting? This may be a literal
reading of the law, but now we're talking the equivalent of the 55mph limit
- no one is paying performance royalties for Mozart or Bach. Or are they?

P.S. If publishers get nasty about this, it will not help them -- it will
only increase business for outfits like Dover and Kalmus who reprint public
domain editions. Also, the increased costs of sheet music and performance
are one reason that modern composers are less often performed. I understand
your desire for just compensation, but why should someone perform a Gresham
piece if it costs ten times as much as Mozart? You may be pricing yourself
out of the market by insisting on your "rights."

------------------------------------
Date: Tue, 17 Aug 1993 12:45:22 -0600
From: dscatl!mgresham@merlin.gatech.edu (Mark Gresham)
Subject: Re: copyright

Allan H. Simon writes:
>It's the "and" in that paragraph that intrigues me. In scholarly editions,
editors are careful to bracket their editorial additions, so that it's easy
to tell what material is urtext (i.e. "preexisting"). Copying that material
would seem not to violate condition #2 above.

Unfortunately, most editions are not scholarly editions. The vast majority
of music actually used are "practical" editions or terribly mangled ("Hal
Hopson's Handel's Messiah" -- what a pretentious titling!); in the case of
Hopson's work just metioned you have both, the "mangling" (a "fast-food"
sliced and diced monstrosity for people who want to think they've "done
Messiah" but have only 30 minutes in which to do it) and the "practical"
(Hopson's "easier" piano reductions of the orchestra for the pianistically
impaired).

>In other words, if a copyist
>uses one source, but uses only that material which the >edition presents
as preexisting, is s/he in "flagrant" >violation of copyright?

Someone would have to accuse you of that and prove their case. Because of
your particular use of "flagrant" and "preexisting" I'm inclined to defer a
detailed response to a copyright attorney. If the publisher can prove that
you could not possibly have used another edition from which to copy parts,
then you're in trouble. Example: an "urtext" edition of a piece that has
never before been published. This is where your use of "preexisting" comes
into play; do you been previously published, or do you mean simply "written
long ago" by that?

>In response to Robert Haskins, I'd like to hear of a case
>where someone convinced a jury that *measure numbers* were
>an original creation.

I have to say that as a blanket statement, Bob's not right here.
Measure/rehearsal numbers could plausibly be used as evidence that someone
copied from a specific edition, but rehearsal/measure numbers themselves
are not copyrightable, per se. Neither are titles.

>If publishers are deliberately inserting errors in order to >catch
copiers, I'd like to know about that.

Less publishers and "deliberate errors" than some arrangers and publishers
using "signatures" in the music, particularly music from oral traditions.

I recall one instance in which I was interested in using a Native
American tune which appears in the most recent Methodist Hymnal. The
response I got from someone at Methodist Publishing House was "if you can
find a public domain source, fine for you; if you can't find anything other
than ours, we don't want to dilute the product." So I simply wrote
something else that worked just as well for the use in question.

>I'd like to hear more about "performance rights." From the
>recent messages, I infer that every copyrightable element
>(even a trill) also is copyrighted for perfomance purposes.

Let's go back a bit. While new "editions" are copyrightable, such new
editions have to involve "significant creative input" (as my attoreny puts
it) in order to be genuinely protected under copyright laws. Simply
talking a public domain source and putting one trill on one note is clearly
not "significant creative input."
One standard of measure has to do with "common craft of the trade." If
such additions are no more than what the average player would add under
conditions of "common practice" then you have a good case against
"significant creative input." If, however, a claimant can make a good case
that the additions are scholarly, or otherwise exceptional requiring
"significant creative input" (research, adaptation, etc.) then the claimant
has a good case.

What is in question is not the copyrightability of this trill or that
fingering or that changed note, but the complete edition, those elements
being what identifies (or doesn't) that edition as a copyrightable entity
(or portion of that entity).

>Since we have to use some edition for every performance,
>does that mean that we have to pay the publisher >performance royalties on
every piece we perform, no matter
>how old, because some trill, measure number, or other
> detail wasn't preexisting?

See the above.

>This may be a literal reading of
>the law, but now we're talking the equivalent of the 5
>5mph limit - no one is paying performance royalties for >Mozart or Bach.
Or are they?

There's several parts to an answer to this.

If someone is performing Bach's St. Matthew Passion with the Robert Shaw
english translation, then yes, Shaw is getting performance royalties for
that translation.

Editions are another matter, but I will say that trying to pin down a
specific "edition" for getting performance royalties would be quite a task
in the case of many instrumental works by Bach. An "arrangement" from
Shawnee Press is a different matter; those are certainly credited.

Note that I said "is getting" performance royalties for a particular
work. This is because: Although any publisher or writer (composer or
author) can indeed try to collect performance royalties on a given piece,
most have made agreements with a performance rights organization to collect
royalties on their behalf for "small rights." Since mine is with ASCAP,
I'll use ASCAP as the example. You do not pay a fee for a license for a
specific piece with ASCAP. You pay a fee for a license for the concert,
and can perform as many ASCAP catalog works as you like in that concert.
The fee is based upon 1) the capacity of the performance space and 2) the
highest price of admission. For a concert where the ticket price is under
$3 and the audience capacity is under (I think) 300, the total fee is $11
for a single concert contract; $7 if you have an ongoing agreement. It
does rise as both capacity and ticket price increase. So the people paying
the highest fees are rock concerts in stadiums.

Do composers of serious music actually get anything out of this? Yes,
because the distribution formula is different from the collection formula.
But I won't go into that because it doesn't affect what you pay (which is
the subject here). I will say that arrangements of public domain music get
MUCH smaller shares of performance royalties than original works; In fact,
I'm not sure how much (if any) "editions" get.

>P.S. If publishers get nasty about this, it will not help
> them -- it will only increase business for outfits like
>Dover and Kalmus who reprint public domain editions.

That's as the market bears the situation. That's fine. I tend to do the
same unless I really want a particular edition and am willing to pay for
it.

> Also, the increased costs of sheet music and performance
>are one reason that modern composers are less often
>performed.

That goes for all music, not just new music!

>I understand your desire for just compensation, but why >should someone
perform a Gresham piece if it costs ten >times as much as Mozart? You may
be pricing yourself out of
>the market by insisting on your "rights."

You perform it because you want to perform it. First of all, it doesn't
cost ten times as much as Mozart. Second, in my experience I have found
that the last argument is simply not true. It's an old argument, but it
doesn't hold up in reality. Lots of new music is being bought and
performed. Lots of very mediocre music is being bought and performed.
Lots is going unperformed more because the results don't justify the
rehearsal time! Some music simply has a smaller market potential,
royalties or no royalties. Some junk has a great market, and royalties are
gladly paid for it anyway. (Caveat: Music performed "in a religious
service" is not subject to performance rights fees. A concert at a church
is, however.)

Personal experience:
I have mentioned the copyright infringement of some of my music in which
I got "burned" -- but that was incidental and exterior to the case, not
part of the infringement settlement itself. One of the positive results of
my pursuit of that infringement is that people from that region
(Texas/Oklahoma) have written to find out how to legitimately buy/license
my music, people who otherwise would have blissfully "Xeroxed away" has I
not insisted upon my rights. (And from whom I would have not received one
dime.) So no, insisting upon my rights has not priced me out of the
market; on the contrary, it has increased my actual market share.

(And when you perform something of mine at your college or university,
you pay nothing more out of your program budget for performance rights
beacuse your institution has already paid a "blanket fee" to ASCAP and BMI
for all of the concerts in that academic year.)

P.S.: Performance rights for "concerts" and "broadcasts" are what are
known as "small rights" and come under an ASCAP license. However, operas,
ballets, staged musicals all come under "grand rights" and are not covered
by an ASCAP license (ASCAP cannot collect "grand rights" fees on a
composer's behalf). "Grand rights" fees are negotiated directly with the
owner of the copyright.

P.P.S.: The incredible practice of score/parts rentals for some composer's
works are a bit out of sight for most people. As technology changes and it
becomes more and more practical to publish "for your order" I think rental
prices will come down and/or "copies for purchase" will become more
practical for new, large-scale works. I think the rental process does two
things for the publisher today: 1) avoids massive reproduction costs for a
work with few performance prospects and 2) avoids a situation where one
ensemble buys a work and then loans it to everyone else. (Or rents it
themselves!)

-------------------------------------------------
Date: Mon, 26 Sep 1994 08:19:07 -0600
From: Burch Seymour
Subject: Arrangements, what makes one?

Recently I suggested, as an extreme possibility, doing a local
edition of a public domain work. Given the availability of computer
technology this is certainly possible. Whether it is practical is
open to debate. As is whether it is legal.

I've had some e-mail conversations on the latter topic, and I must
state categorically, unambiguiously that I have no idea what the
legalities are. So, can someone out there help to unconfuse me about
these points? Thanks.

Public Domain: What is in public domain? The music, as in note values,
durations, words, etc? Or a particular arrangement of that piece?

Arrangements: What constitutes an arrangement? If I want to do my own
arrangement, say of a Mozart Mass, what must I do to make it
a legal version? If I go to the music store, buy a copy of a current
"other" edition, enter it into my music printing program, add my own
markings. Is that mine? (For the moment let's ignore the problem of
piano reductions of orchestral parts, which is clearly a different
composers work). In "theory" shouldn't the notes, durations, and words,
be those of the composer? Don't those become public domain after a
period of time (75 years?)?

Anyone care to take a stab at this?

---------------------------------------------------------
Date: Tue, 27 Sep 1994 01:14:34 -0600
From: "Kevin D. Robison"
Subject: Re: Arrangements, what makes one?

Public domain works include those which are no longer held under
copyright (if they ever were). Any work is public domain as long as
there is not a printed edition still available. Yes, there is a period
of time after the composer's death for which it remains so, but I'm not
sure exactly how that works.

> Arrangements: What constitutes an arrangement? If I want to do my own
> arrangement, say of a Mozart Mass, what must I do to make it
> a legal version? If I go to the music store, buy a copy of a current
> "other" edition, enter it into my music printing program, add my own
> markings. Is that mine?

Most definitely NOT. In order to make a legal edition or arrangement of
a Mozart piece, you must use original or non-copyright
manuscripts or editions, which are, needless to say, difficult to find.
At the same time if you have no access to those manuscripts, you may use
an existing edition as long as you don't attempt to publish it without
the editor's consent (this, of course, is not written in the law, but no
one will come after you if you're doing it for your church choir).
Should you have the fortune of having it published, you must be honest
with the publisher and allow them to handle the necessary fees with the
publisher of the original edition.

Copyright law is very complex. I don't begin to claim to understand it
all. Good luck.

-----------------------------------------------------------------
Date: Tue, 27 Sep 1994 13:48:48 -0600
From: DANGAWTHROP@delphi.com
Subject: Copyright

"Any work is public domain as long as there is not a printed
edition still available."

CAUTION!

This myth is absolutely NOT true and is potentially dangerous.

Copyright exists until it expires, and has nothing whatsoever
to do with the availability of a printed edition.

Do NOT assume that you are immune from prosecution under
criminal statutes, and civil suits for damages, merely
because the piece you wanted to reproduce was not available
through regular commercial channels.

Copyright protection specifically gives the owner the right
to determine exactly where and how the work may be reproduced--
so long as copyright is still in force on the work in question,
NO copy may be made without permission of the copyright owner,
regardless of availability of printed editions.

If you want to copy something still under protection, track
down the copyright owner and ask for permission. If you either
cannot find the owner or cannot persuade them to agree, then
you cannot copy. Period.

-----------------------------------------------------
Date: Wed, 28 Sep 1994 19:31:58 -0600
From: James.Langdell@Eng.Sun.COM (James Langdell)
Subject: Re: Copyright

Dan is quite right here. Something being out-of-print
doesn't make it out-of-copyright. Not at all.

What may be confusing is that the right to *publish* a work
sometimes reverts to an author if the original publisher fails to
keep it in print. But that isn't an issue of copyright being
lost from the work itself.

-------------------------------------------------------------
Date: Thu, 29 Sep 1994 06:59:44 -0600
From: greenj@vax1.elon.edu
Subject: public domain in print

While it is true that works no longer in print remain copyrighted until
the expiration of the copyright, please also remember that many editions of
works which are very available, currently in print are indeed in the public
domain and may be legally copied. Most Kalmus and Dover edition fall into
this category, but it costs more to copy most Dover scores than to buy
them.
Praise to Dover. Kalmus orhcestra parts are often a different matter, and
a single set may be copied at will, most of the time.

----------------------------------------------------------
Date: Thu, 29 Sep 1994 12:30:42 -0600
From: DANGAWTHROP@delphi.com
Subject: Copyright

With reference to:

>>Who would you say is the copyright owner of the Mozart masses?
>>The quote from above is perhaps a bit off, but you've taken it out
>>of context. The question was in regard to Mozart. Mozart's music
>>itself is public domain. It's the printed editions which are copyright.

and:

>>While it is true that works no longer in print remain copyrighted
>>until the expiration of the copyright, please also remember that many
>>editions of works which are very available, currently in print are
>>indeed in the public domain and may be legally copied. Most Kalmus
>>and Dover edition fall into this category, but it costs more to copy
>>most Dover scores than to buy them. Praise to Dover. Kalmus orhcestra
>>parts are often a different matter, and a single set may be copied
>>at will, most of the time.

I believe my original message was clear, correct, and to the point.
I stand by those comments as written.

------------------------------------------------------------------------
Date: Thu, 29 Sep 1994 16:25:56 -0600
From: KatNagel@aol.com
Subject: Re: Arrangements, what makes one?

kdr@scs.unr.edu writes:
>Any work is public domain as long as
>there is not a printed edition still available.

This implies that if something is out of print, it is not protected by
copyright. I don't think this is correct.

As I understand it, the rights of the composer, the arranger, the
publisher,
and the author or translator of the text are protected for a specified
period
of time --- currently the life of the composer/arranger/author plus 50
years
--- even if noone chooses to go to the expense of reprinting and
maintaining
an inventory of that particular edition.

In other words, you can't trample on the rights of these folks just because
the publisher is a short-sighted, inconsiderate sob .

On a brighter note, it is generally possible to get permission to reproduce
out-of-print works, especially for an educational or other non-profit
group.
In many cases, a simple note or phonecall will get you a letter of
permission to photocopy (St. Xerox of the Midnight Press, be praised). In
other cases there may be a small fee required, especially if you are
planning
to record or broadcast the performance, or if your group is not protected
by
legal non-profit status.

There is a very clear explanation of all this in a book called something
like
"This Business of Music." It is available in our local public library and
at
the Sibley Music Library at the Eastman School of Music. I suspect that it
is readily available in most large libraries. If not, I can get the
details
so you can order it or request it through your library's Inter-Library Loan
service.

-----------------------------------------------------------
Date: Fri, 30 Sep 1994 10:16:58 -0600
From: WahooFive@aol.com
Subject: Cost of permission to photocopy

katNagel wrote:
> On a brighter note, it is generally possible to get permission to
> reproduce out-of-print works, especially for an educational or other
> non-profit group.
> In many cases, a simple note or phonecall will get you a letter of
> permission to photocopy (St. Xerox of the Midnight Press, be
> praised). In other cases there may be a small fee required,
> especially if you are planning to record or broadcast the
> performance, or if your group is not protected by legal non-profit
> status.

My experience with publishers is that they charge LIST PRICE for every copy
you make (and yes, we're legally a nonprofit). That means you have to pay
more for out-of-print music than for in-print music, not even counting the
cost of photocopying. Better ask before you commit to doing an out-of-print
work, assuming it will be a "small fee."
----------------------------------------------------------

Date: Sun, 2 Oct 1994 13:31:59 -0600
From: edwinvo@dragons.nest.nl (Edwin van Ouwerkerk)


> Dan is quite right here. Something being out-of-print
> doesn't make it out-of-copyright. Not at all.

Here in Holland (and I'm not sure how different dutch copyright-law is from
the
rest of the world. I thought these things were handled more or less on an
international scale) there is a small sort-of exception to this. If a publisher
is not able to deliver the required material in time, you _are_ allowed to make
copies. You do need some sort of letter from the publisher stating their
"inability to deliver", and the copies have to be destroyed afterward. AFAIK
this is the only exception to the "copyright=copy is wrong" rule.

CU,
Edwin (edwinvo@dragons.nest.nl)
-----------------------------------
Date: Tue, 25 Oct 1994 17:33:50 -0600
From: KatNagel@aol.com
Subject: Re: Copyright

mark.warkentin@vdf.com wrote:
> There is a very clear explanation of all this in a book called
> something like "This Business of Music." It is available in our
> local public library and at the Sibley Music Library at the Eastman
> School of Music. I suspect that it is readily available in most
> large libraries. If not, I can get the details so you can order it
> or request it through your library's Inter-Library Loan service.

If you would post the details, I would really appreciate it.
-------
Sorry for the delay in replying. Life got complicated for awhile.

The book I referred to is:
This Business of Music
by Sidney Shemel
Billboard Books

It gets revised every couple of years. The edition I remember had a huge
copyright chapter with detailed explanations of the impact of the Copyright
Reform Act on composers, arrangers, performers, music teachers, etc. It was
published in 1977 or 1978. Later revisions may have trimmed some of the
text, but will probably have information on the results of recent court cases
which may be helpful.

BTW, Billboard also publishes another very helpful book:

The Billboard Guide to Music Publicity
by Jim Pettigrew, Jr.
Billboard Books 1989
ISBN 0-8230-7575-3
-------------------------------------

Date: Mon, 19 Dec 1994 09:21:20 -0700
From: Mark Gresham
Subject: gopher info on copyright

To help reduce the online debate and questions regarding copyright, I
would like to suggest one easy source of information and documents on
copyright and recent news and changes regarding copyright andnthe
Copyrigh Office. (Which has a new set of P.O. Box numbers BTW.)

Thoe of you who have 'gopher' capabilities can acccess these things via
the Library of Congress Marvel Information System.
(For technos: gopher://marvel.loc.gov/11/copyright)
Most of you should be able to easily wade your way through menus to find
this. Otherwise, gopher directly to marvel.loc.gov. You can get a copy
of these documents most easily by using the Print option (P) while
viewing the document and the select the 'E-mail to yourself' as the most
direct method.

For those of you who do not have gopher, I have stored some of the public
documents (on such subjects as "fair use" and "educators and librarians")
here and can e-mail them directly to you (none over 110k in size) if you
will e-mail to me directly at mgresham@america.net for a list of what I
have on hand first. (Please don't ask "do you have something on...?" but
ask for the list of what I do have. That will make my life (and yours)
much simpler.)

But if you do have 'gopher', use that method first (you can get much more).
-------------------------------------------------

Date: Mon, 19 Dec 1994 21:03:44 -0700
From: Mark Gresham
Subject: Re: Symphony of Psalms Choral Scores

On Mon, 19 Dec 1994, CRABB, PAUL wrote:

> I have been planning to do Stravinsky's "Symphony of Psalms" during
> spring semester 1995. When the bookstore placed the order with Boosey
> and Hawkes at the beginning of December, B & H informed the bookstore
> there were only 20+ copies available and they would not reprint until
> the end of Jan., which would mean I lose a valuable month of rehearsal
> time. B & H will give me permission to make 100 photocopies for $375
> but will not allow me to sell the copies to my students, which taxes my
> budget more than I can afford. Is there anyone who might have the
> choral scores in their library and would be willing to loan them? I
> need approximately 150. I would replace any damaged or lost copies and
> be glad to pay shipping. I'd appreciate a response by phone

This, I beleive, is a genuine case where you can invoke the "fair use"
clauses etc. of copyright law. The publisher is willing to sell you
printed copies, but cannot get them into your hands until the end of
January. Once your orcer is placed, you should be able to make temporary
copies of the number that is backordered for use until the real ones
arrive at the end of January.
Shame on B&H for attempting to weasel $375 out of you under those
circumstances.
Go ahead and order the 150 you need, accepting the 20+ that they have,
then invoke "fair use." When the backordered copies arrive, destroy any
temporary copies you have made (which you should mark as TEMPORARY for
the students' information, and explain to them about the special
circumstances under which the copies were made--as well as why general
copying is a "no-no").
Let me know if you need further information about this particular
invoking of "fair use."
-------------------------------------

Date: Mon, 2 Jan 1995 22:48:09 -0700
From: Mark Gresham
Subject: RE: Sharing music

On Mon, 2 Jan 1995, John Howell wrote:

> It's my impression that the LOAN of a piece of copyright music, and
> especially the loan of multiple copies, constitutes distribution under the
> law, and is therefore very much illegal. Does anyone have any actual
> information on this question, as opposed to folk tradition or wishful
> thinking? Thanks!

Wally Collins asked about this some time ago, and I didn't get around to
posting the answer then. The best answer comes directly from the U.S.
copyright laws themselves: section 109. That section also includes some
related items of further interest. I will quote below excerpts edited
for greatest interest to musicians, particularly musicians in non-profit
institutions, perhaps with some commentary. Mostly, the deleted items
(marked with [...]) have to do with computer programs and special
applications of computer programs; quoted segments have lines beginning
with the ">" character:

> U.S. COPYRIGHT ACT, AS AMENDED
> ..CHAPTER 1. SUBJECT MATTER AND SCOPE OF COPYRIGHT
>
> § 109. Limitations on exclusive rights: Effect of transfer of
> particular copy or phonorecord
>
> * (a) Notwithstanding the provisions of section 106(3) [17 USCS
> § 106(3)], the owner of a particular copy or phonorecord
> lawfully made under this title [17 USCS §§ 101 et seq.],
> or any person authorized by such owner, is entitled, without the
> authority of the copyright owner, to sell or otherwise dispose of
> the possession of that copy or phonorecord.

Comments:
This is the core of what is generally called "first sale doctrine." Once
copies are first sold, the general provision is that THOSE particular
copies may be transferred to another party without permission of the
copyright owner. The phrase "otherwise dispose of" includes rental,
lease or lending (see use of "dispose" in sections below). Note that
this refers only to existing, legitimate copies, and does NOT allow for
the creation of any additional copies. (Original number purchased is not
relevant.)
Phonorecords/sound recordings (and computer programs) have special
restrictions, however. For phonorecords/sound recordings in particular:

> * (b)(1)(A) Notwithstanding the provisions of subsection (a), unless
> authorized by the owners of copyright in the sound recording
> [...], and in the case of
> a sound recording in the musical works embodied therein, neither
> the owner of a particular phonorecord [...], may, for the
> purposes of direct or indirect commercial advantage, dispose of,
> or authorize the disposal of, the possession of that phonorecord
> [...] by rental, lease, or lending, or by any
> other act or practice in the nature of rental, lease, or lending.

Comments:
The above is aimed at commercial situations. I'm not sure of what
the specific commercial practice is the intended target of that; however,
most of you will be happy to know:

> Nothing in the preceding sentence shall apply to the rental,
> lease, or lending of a phonorecord for nonprofit purposes by a
> nonprofit library or nonprofit educational institution. [...]

Which is good news for educators; doesn't seem to include churches,
unless a church has a dedicated library.
Further elements of this subsection have been omitted (things like
machine-dedicated computer programs, video games...)

>[...]

And we go right over to the next subsection:

> * (c) Notwithstanding the provisions of section 106(5) [17 USCS
> § 106(5)], the owner of a particular copy lawfully made
> under this title [17 USCS §§ 101 et seq.], or any person
> authorized by such owner, is entitled, without the authority of
> the copyright owner, to display that copy publicly, either
> directly or by the projection of no more than one image at a time,
> to viewers present at the place where the copy is located.

Comments:
Which I find very interesting regarding the inclusion of "projection."
Some of you may be familiar with some "church use" licenses/contracts
which include a fee for projections. (Some churches have found it
an attractive to project a hymn on the wall for congregational singing.)
While some such contracts may well specify "making transparencies" for
projection, it would seem that using an old-fashioned "opaque projector"
could be done without permission or payment. Church musicians, check
your licenses! :-)

> * (d) The privileges prescribed by subsections (a) and (c) do not,
> unless authorized by the copyright owner, extend to any person who
> has acquired possession of the copy or phonorecord from the
> copyright owner, by rental, lease, loan, or otherwise, without
> acquiring ownership of it.

Comments:
Reasonable. What this prevents is re-leasing or shared leasing by
several parties of a score that is available by "rental only" in order to
skirt around full rental fees for one or all parties involved.
While I don't personally care for "rental only" as a general practice,
I can see why certain new scores which have a high up-front cost for
the publisher and limited performance opportunities would be rental
only (as well as certain theatrical scores). One would quickly lose
money as a new piece was purchased by one group and passed around.
With my own music, however, I currently prefer to sell the scores and
parts. If I greatly expand my purely orchestral catalog, I may change my
mind. :-)
---------------------------------------------------------------------

Date: Fri, 10 Feb 1995 17:27:48 -0700
From: Lewis Worthington
Subject: Copyright

We all know what a nightmare copyright issues can be. I attended a
recent session at the LSU School of Law on the matter. A representative
from Schirmer (I didn't write his name down) said that borrowing and/or
lending music is a violation of copyright laws and has been upheld in
court judgments.

His rationale: The purchase price of music includes the permission to
perform it. If you borrow music, you have not paid for the performance
rights.

I don't know enough about it to argue with the guy. Does anyone have any
other experience with this? I have never needed to borrow music for a
performance, but had never dismissed the idea either.
--------------------------------------------------------------

Date: Fri, 10 Feb 1995 19:28:17 -0700
From: jmcrowell@ucdavis.edu (John M. Crowell)
Subject: Re: Copyright
>
> A representative
>from Schirmer (I didn't write his name down) said that borrowing and/or
>lending music is a violation of copyright laws and has been upheld in
>court judgments.

As our barracuda (excuse me, I mean lawyer) explained it to us, this is not
strictly true. But performing the borrowed, copyrighted music
without paying appropriate royalties is a violation.

>His rationale: The purchase price of music includes the permission to
>perform it. If you borrow music, you have not paid for the performance
>rights.

The same argument for performance rights applies to repeating a piece
after it's been your library for a few years. Most of us (?) pay lump
performance rights annually to ASCAP or BMI or both to cover such
contingencies. Such payment covers performances of borrowed music too.
-----------------------------------------------------------

Date: Fri, 10 Feb 1995 23:24:56 -0700
From: Mark Gresham
Subject: Re: Copyright

On Fri, 10 Feb 1995, Lewis Worthington wrote:

> We all know what a nightmare copyright issues can be. I attended a
> recent session at the LSU School of Law on the matter. A representative
> from Schirmer (I didn't write his name down) said that borrowing and/or
> lending music is a violation of copyright laws and has been upheld in
> court judgments.

First of all: Which Schirmer? G. Schirmer or E.C. Schirmer?

Second: He is dead wrong on both counts.

Let's undercut the rationale first: The purchase of music does NOT
include the permission to perform it. You have only purchased an
"artifact," the copy printed music itself, not any rights to use
of the music at all. (Assuming we're not talking about "public
domain" music without copyrightable editorial material anyway.) Performance
rights must be licensed through a perfoming rights society (such as
ASCAP, BMI, or SESAC) or if the copyright holder is not a member of such
a society from the copyright holder directly.

Next, let's deal the death blow to his argument with the letter of the law:
("copy" means a copy of the printed music)

> U.S. COPYRIGHT ACT, AS AMENDED
> ..CHAPTER 1. SUBJECT MATTER AND SCOPE OF COPYRIGHT
>
> _________________________________________________________________
>
> § 109. Limitations on exclusive rights: Effect of transfer of
> particular copy or phonorecord
>
> * (a) Notwithstanding the provisions of section 106(3) [17 USCS
> § 106(3)], the owner of a particular copy or phonorecord
> lawfully made under this title [17 USCS §§ 101 et seq.],
> or any person authorized by such owner, is entitled, without the
> authority of the copyright owner, to sell or otherwise dispose of
> the possession of that copy or phonorecord.

That's the letter of the law, known in the copyright industry as the
"first sale doctrine." One of the exceptions (implemented under the Bush
administration, I believe) has to do with computer software, and specific
limitations listed below have to do with phonorecordings (my [...] added
to edit out generally not-so-music-related stuff):

> * (b)(1)(A) Notwithstanding the provisions of subsection (a), unless
> authorized by the owners of copyright in the sound recording
> [...], and in the case of
> a sound recording in the musical works embodied therein, neither
> the owner of a particular phonorecord [...], may, for the
> purposes of direct or indirect commercial advantage, dispose of,
> or authorize the disposal of, the possession of that phonorecord
> [...] by rental, lease, or lending, or by any
> other act or practice in the nature of rental, lease, or lending.
> Nothing in the preceding sentence shall apply to the rental,
> lease, or lending of a phonorecord for nonprofit purposes by a
> nonprofit library or nonprofit educational institution. [...]
>[...]

And permission to display the artifact in various forms:

> * (c) Notwithstanding the provisions of section 106(5) [17 USCS
> § 106(5)], the owner of a particular copy lawfully made
> under this title [17 USCS §§ 101 et seq.], or any person
> authorized by such owner, is entitled, without the authority of
> the copyright owner, to display that copy publicly, either
> directly or by the projection of no more than one image at a time,
> to viewers present at the place where the copy is located.

..which directly counters some church music publishers' contracts that I've
seen!!! And of course, you must have actual ownership of the artifact in
order to sell or lease it (which only makes sense!):

> * (d) The privileges prescribed by subsections (a) and (c) do not,
> unless authorized by the copyright owner, extend to any person who
> has acquired possession of the copy or phonorecord from the
> copyright owner, by rental, lease, loan, or otherwise, without
> acquiring ownership of it.
>[...]
> _________________________________________________________________

And that's the issue, straight from the U.S. copyright laws courtesy of
the Library of Congress' WWW server (at marvel.gov).
I wish you'd gotten this guy's name (and which Schirmer he's from), but
blow the whistle on him to other people who were at the seminar. Refer
them to section 109 of the U.S. copyright laws.

> I don't know enough about it to argue with the guy.

Now you do. I'm surprised that the LSU Law Dept. people didn't catch him
at such a blatantly elementary lie. So go tell them you nailed it.

> Does anyone have any
> other experience with this? I have never needed to borrow music for a
> performance, but had never dismissed the idea either.

Now you can in good conscience. But make sure it's music the lender
actually owns and that the lender isn't trying to jimmy splitting the costs
of a rental score from the publisher! ;-)
--------------------------------------------------------

Date: Tue, 14 Feb 1995 08:18:08 -0700
From: Mark Gresham
Subject: RE: Copyright

On Mon, 13 Feb 1995, John Howell wrote:

> A month or so ago, someone posted a definite answer to this saying that it
> was NOT a violation. Could that poster please reply with sources?

That was me. Section 109(a) of the U.S. copyright statutes. It's
referred to in the legal industry as "first sale doctrine."
This applies to music you have purchased (or music for which you have
obtained actual ownership of the copies), not music you have rented
(you cannot sublease or loan rental material), and you can "dispose" of
it (which includes loan and rental) as you please.

> Under the 1976 law, the purchase price of music does NOT include permission
> to perform. (I know, it's illogical, but that's what keeps lawyers rich!)

It's quite logical: copyright is actually a bundle of rights:
reproduction, performance, mechanical, synchronization, etc.

> This is a major change from the 1909 law.

Oh, really? No, these rights were also a bundle of rights then;
performance rights were not included in the purchase price. But until
the advent of societies like ASCAP, these royalties were difficult to
collect from a standpoint of practicality. (Care to be a composer trying
to track down radio peformances of a pop song by yourself, nationwide?)

> Under currect law, the nature of
> the performance determines whether it comes under an educational or
> charitable exception. Under the old law, there was a blanket exemtion for
> educational or charitable use; no longer.

Under the old law, "fair use" was a matter of judicial exception to the
exclusive rights of the copyright holder; under the new law it is
statutory. But the judicial practice under the old law and the statutory
criteria under 1976 are consistent with each other.
There never was an blanket exemption for "educational or charitable"
use, although "non-profit educational use" has been one judicial criteria
for "fair use" and is one of the criteria under the 1976 statutes. While
the letter of the 1909 law states that the copyright owner has the
exclusive right "To perform the copyrighted work publicly for profit..."
the issue of exception for non-profit uses has been a matter of judicial
decision, and "non-profit educational use" has been only one element in
reaching a decision. Another criteria is "the effect of the use upon the
potential market for or value of the copyrighted work," and if a work is
primarily aimed at the educational market... There is also the criteria
of "the amount and substantiality of the portion used in relation to the
copyrighted work as a whole." While an excerpt may be used for teaching
in a classroom, the use by educational institutions for out-an-out
performance has been taken over the years to not fall under the criteria
for "fair use."
There has never been a such criteria for merely "charitable" use.
Otherwise, every symphony orchestra in the country would be exempt from
performance royalties!

> As I interpret it, a school concert is exempt from further permissions and
> payment of further royalties because it is educational. A fund-raising
> concert for a school, or for a local service club's charitable activities,
> is exempt under either educational or charitable.

None of that is true. FYI, ASCAP has an entire department concerned with
educational use. Universities and colleges pay blanket performing rights
licenses, as do schools or school systems. (That may be why faculty
members never see it and assume they aren't paying performance royalties.)
----------------------------------------------------------

Date: Sat, 19 Oct 1996 15:38:38 -0700
From: ngilbert@uci.edu (Nina Gilbert)
To: adscript@montana.com, choralist@lists.Colorado.EDU
Cc: windyrim@aol.com
Subject: How to find a copyright holder (was: Old Girl Scout Songs & copyrights)

Kathy Hubbell asks,

>If she cannot find published words or music to some of these
>songs, how does she check copyright status?


My friend Joanna Roussis at the Music Copyright Catologuing Division of the
Library of Congress recently answered a similar question, and since Joanna
offers the official word on this kind of question, I am forwarding her
response to all of Choralist. This procedure also applies to, say,
composers trying to find the copyright owner for a poem they want to set.
You may be able to find cheaper, more roundabout routes to the same
information, but this one should be definitive and legally binding.

****
> The Copyright Office will provide a complete search report on the
>ownership of copyrighted works for a fee of $20.00 per hour. The more
>details supplied about a particular work, the better and quicker the
>search will be. Also specify if you want the address of the owner.
>By the way, this particular work cannot be done online through the
>internet, because the online file begins in 1978. One either comes in
>here to search the card catalog, or requests the search from the Office.
> If you call for an estimate on the search fee, then
>they will begin the search as soon as the fee is received. Send your
>request to:
>
> US Copyright Office
> Reference and Bibliography Section
> LM-451
> Library of Congress
> Washington, DC 20559
> 202-707-6850.
>
>They will send a written report, or report by telephone if that is what
>is desired.
>
>Joanna Roussis
>Copyright Office

Kathy also asks about finding a song called "Kentucky Babe." You should be
able to get that from the Barbershop Harmony Society (you know, SPEBSQSA).
I think you can still reach them at 1-800-876-SING. They have various
editions of it, because it is a song whose words have been changed as they
became politically incorrect (at one point the "babe" had a "little woolly
head" and a "Mammy"...). If the title isn't "Kentucky Babe," then it's
"Sleep, Kentucky Babe," and the SPEBSQSA wizards were able to trace it last
time from that much information.
//////////////////////////////////////////////////////////

Date: Mon, 21 Oct 1996 13:03:39 -0400
From: pcaleb@nypl.org
To: choralist@lists.Colorado.EDU
Subject: Finding copyright info

As a new subscriber the Choralist I missed the first part of this
thread. I'm a librarian in the Music Division of the New York Public
Library for the Performing Arts and I deal all day every day with
people trying to track down copyright information. Here are some
resources that you might find useful:

INTERNET RESOURCES:
*ASCAP: http://www.ascap.com
*B.M.I.: http://bmi.com
The complete catalogs of these organizations are know searchable
on the Web. These catalogs give you the current publisher or
copyright holder, but do not tell you the copyright date. Beware:
Since the information given is otherwise very sketchy, you often
cannot know for sure whether it is for the original song or for an
arrangement thereof.

*Music Publishers Association: http://www.mpa.org
This site includes an invaluable index of publishers, both current
and defunct, with a link to the current address of their American
distriburs or owners of their catalogs.

Public domain songs: http://www.bright.net/~pdinfo/resource.htm l#list
This site presumes to list song titles in the public domain. I
think I would take some of the information given here with a grain of
salt.

PRINT RESOURCES:
*Cohen-Stratyner, Barbara Naomi. Popular Music, 1900-1919: An
Annotated Guide to American Popular Songs. Detroit: Gale Research
Inc., 1988.
*Shapiro, Nat, and Bruce Pollock. Popular Music, 1920-1979. 3
volumes, plus annual supplements. Detroit: Gale Research, 1985.
These remain the most convenient first places to look for the
original publisher of a popular song. Arranged alphabetically by
title, each entry tells you who wrote the song, the publisher and
date of publication, and mentions significant performances of the
song (including, usually, the name of the person or group who
introduced it). Shapiro & Pollock is brought up to date by
annual supplements.

*Lissauer, Robert. Lissauer's Encyclopedia of Popular Music in
America, 1888 to the Present. New York: Paragon House, 1991.
This is similar to Shapiro & Pollock above but gives less
detailed information. Its primary advantages are that it includes
12 years not covered by S&P and consists of only one volume. It
does not give you copyright or publication date, but it does tell
you the date a song was made popular, which can be a useful lead.

*Fuld, James J. The Book of World-Famous Music: Classical,
Popular, and Folk. 4th ed., rev. and enl. New York: Dover