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Copyright issues with MIDI practice files on choral websitesDate: November 3, 2009 by Jim Korn
 I need advise on the copyright issues of putting MIDI practice files on a choral website. I have tried to find this information through Internet search but mostly have only found discussions about putting commercial recordings on websites. The background is:
1) Does anyone know who is supposed to be paid and how much the payment is? Does the money go to ASCAP/BMI or harry fox or who?
2) Other choruses seem to have MIDI practice files available for members; do any of you pay anyone for the copyrights or is this part of copyright licensing generally ignored, and if so, what is the rationalization/justification?
3) Is there any documentation or case law that would support that this kind of "educational" use as a fair use and so no copyright license is required?
Thanks for any help and/or any pointers to good articles specifically about MIDI practice files on websites. Replies (21): Threaded | Chronological
Tom Tropp on November 3, 2009 7:40pm
Jim, the House guidelines in Section 107 of Title 17 (the Copyright Law) offer four "litmus" considerations for fair use.
"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."
In my opinion (and I'm NOT a lawyer, but have done some substantial research on the subject of music copyright in the past year), posting your MIDI files is permissible.
1. There is no commercial use of the copyrighted work; the MIDI files are purely for educational use and ease of learning.
2. The copyrighted music is intended for performance, and I don't think anyone would define your MIDI files as a performance.
3. By virtue of the fact that you've removed all musical factors but the notes and rhythms (text, dynamics, expression), your use does not constitute the work as a whole.
4. There is definitely no effect on the market value of the copyrighted work.
Seems to me it's definitely fair use, and you're clearly very concious of doing the right thing in all other areas.
Tom
on November 4, 2009 12:36am
1) our group is not an educational institute, just a community chorus.
2) I've been doing the compulsory license stuff for the group for awhile and in my experience it's hard enough to get a response out of the copyright holders even when you want to give them money, albeit a paltry amount of about $9 for a 100 copy run of CDs. They're just not interested in troubling themselves with small potatoes, so it seems doubtful I would get a better response when asking them to grant me permission to make MIDI practice files available on the website.
- Jim
on November 4, 2009 8:39am
It's also been my experience that publishers are often nonresponsive regarding copyright inquiries, so the constant refrain I hear about always asking seems kind of pointless.
However, regarding compulsory licenses, a response is not necessary. If you serve proper notice and pay the statutory fee, you have the license whether they respond or not; section 115(a)(1) says "any other person, including those who make phonorecords or digital phonorecord deliveries, may, by complying with the provisions of this section, obtain a compulsory license to make and distribute phonorecords of the work." (emphasis added). The provisions involve serving a "notice of intention" and paying the fee. This wouldn't apply to MIDI files necessarily, but definitely to small CD runs.
on November 5, 2009 4:01pm
Allen, publishers are generally non-responsive about copyright issues often simply because there's not enough money involved in the inquiry to make it worth their while to answer. It's one thing if a producer asks for permission to use a song on a national commercial, but quite another if Mrs. Jones from the Podunk High School Singers wants permission to record the alto part of some piece for her kids. You can see how enough of those sorts of requests could really bog down their office.
I've approached publishers in the past about permissions to perform a song here or there, and was finally told by one point-blank that these sort of "small use" requests were not terribly welcome. There's a certain amount of manpower that needs to go into creating a proper license, sending it out, etc. and it's just not worth it unless there's real money involved for them or the composer they represent.
on November 5, 2009 5:35pm
Hi, Mark.
It's very true that it costs money just to open an account. That's why the Harry Fox Agency instituted a 500-copy minimum some years ago, although I understand that they've since lowered the minimum payment.
But the important point here isn't whether or not the copyright owner responds (and please note that while everyone ASSUMES that the copyright owner is a publisher that's not ALWAYS the case), but the simple fact that you have asked for permission, in writing, and can provide a paper trail just in case anyone questions your actions later--INCLUDING the fact that your good-faith request was not answered, which would make any publisher who later attempts to sue look pretty foolish.
It costs the price of a 1st-class stamp, and it's worth covering yourself.
To Jim: I suspect that whatever the legal situation actually is, which is VERY unclear, if you post your files in such a way that they can only be downloaded by members of your choir and you CAN show that they are singing from legally-purchased copies, you're about as safe as you can get. You can still ask for permission of course, and keep a paper trail.
And to Mark, I wish you luck as you encourage others to do things that COULD eventually turn around and bite them, just because you think you have the publishers completely psyched out. I certainly agree that in MOST cases you won't be caught or sued, just as in MOST cases you can speed or slide through stop signs without getting caught. But just as there can be traffic stops that DO catch people, there can be publishers' stings that catch folks with file cabinets full of illegal copies. (When I arrived at this school I trashed about 8 flie cabinets worth of illegal copies, going back to purple dittos and unreadable mimeographs!)
And I really do have to take exception to "the general public being asked to become the copyright police." That isn't the point. The REAL point is for ALL of us to understand the law, for us to have enough ethical and moral starch to police OURSELVES, and to make informed decisions when we do decide to break the law, understanding what the results COULD be, just as we do when we decide that it's worth taking a chance to get to our distination 30 seconds sooner!
'Nuff said.
John
on November 6, 2009 12:06am
John, from a purely technical standpoint, I don't think that asking for permission from a copyright owner or publisher that doesn't respond really constitutes "coverage" of any meaningful sort. I see your point about an owner looking silly taking legal action if they've failed to respond to a request, but I can also imagine an owner claiming that their non-response should have been perceived as a denial of permission, not the granting of such. Of course, I really don't see that happening in a "real world" scenario.
I don't think I'm encouraging anyone to do anything that might bite them later. Again, I believe that the vast amount of copyright owners--most especially those composers and publishers that work in the choral world--would consider MIDI parts files to be an absolute non-issue. I doubt any reasonable owner would see them as infringement, even though the law technically says that they are. Why? Because parts files don't rob an owner of royalties or other monies the way, say, an unlicensed recording on a CD would. Of course, it's always possible that there's some Scrooge-like copyright owner out there who spends each day searching the Internet for parts files of his work so he can gleefully lower the boom. Even in that extreme case, the most that would happen would be a polite letter asking that the files be taken down.
on November 4, 2009 2:34pm
Allen and John are correct that "fair use" refers only to educational institutions. That is one of the most misunderstood parts of the law. Many think that it applies to anyone. It does not. Being en educational institution is first, and questions of "fair use" come only after that has been established. The advice to contact the publisher for permission is the best, in my opinion. And do it in writing. Sue
on November 4, 2009 8:39am
Susan, you misunderstood my response. I don't agree that "teaching" is restricted to schools. I suspect, however, that this is another thing which has never been determined by the courts.
This Center for Social Media document says "Educators in community-based organizations ... still can claim the right to use copyrighted materials under the doctrine of fair use." Sounds like a community choir to me.
on November 4, 2009 3:00am
Hi, Jim. The one fact you failed to tell us is what, exactly, your ensemble is. And that's significant because any exceptions granted by the Fair Use Guidelines are granted ONLY to non-profit educational institutions. In other words, SCHOOLS. "Educational" isn't some vague term that you can define in your own way, it means a school.
Your being a non-profit does NOT make you a school, and it does not trump copyright law. Different laws, different interpretations, and different penalties. Nobody getting paid also doesn't matter, if you aren't a recognized educational institution, although if you ARE, then it makes a big difference.
My guess (and like everyone else, I'm not a lawyer) is that this is something that hasn't yet been tested in court, and it's worth remembering that any given law doesn't mean what we THINK it means, or even what the Congress THOUGHT it meant, but what a court decides that it means. That's what courts do, and it's why they consitute a check and balance to keep the idiot lawmakers in line!
But there's a very easy solution to your question: Contact the copyright owners of the music, explain what you're doing, and ask for permission to do it. If they say no, then don't do it! If they say yes, go right ahead. And if they say yes, but want to charge you for it, that's their right and you've got a decision to make.
I hate to disagree so completely with Tom, but in fact he says quite honestly that it's his opinion and his interpretation, just as what I've written above is mine. Especially his 2nd point is questionable, since copyright is NOT just "intended for performance," but covers at least five different and separate "rights" that the copyright owner has.
We're all entitled to our opinions, but the operative question is whether you want to be the first test case that DOES get taken to court. I sure wouldn't!
All the best,
John
on November 4, 2009 4:05am
Agree with your "test case" point, John, since it's pretty certain no court has ever ruled anything about MIDI files. But your reference to "educational institutions" is wrong. The fair use section in the copyright law refers to "teaching".
The meaning of point #2 has been described as follows: Factual works, published works and scientific articles that are factual in nature are more likely to be considered available for fair use than are creative, imaginative, artistic, or unpublished works. Additionally certain "consumable" works, e.g. workbooks and standardized tests are not likely to be considered available for fair use. Also, unpublished works tend to get more protection than published ones. None of this really helps answer the question, but there seems to be some confusion above regarding the meaning of this second point.
From a practical standpoint, there is little legal risk from posting a MIDI file, since publishers have a million other infringements they could pursue, and the uncertainty about MIDI legality impacts them also. And from an ethical standpoint, I think you're on solid ground, since you're not avoiding purchase of the music via this technique. Up to you how important the strictly-legal consideration is.
on November 4, 2009 9:44am
Just want to keep the conversation on track by pointing out that I'm pretty well set with the mechanical license stuff. The creation of CDs and compulsory licenses seems to be a well discussed issue in the various forums.
This question is specifically about the topic of MIDI practice files in a website environment, which I don't think fall under the mechanical license but rather some digital license. This is an area that I can't seem to find any discussion about. The only discussion regarding MIDI files and websites seems to be regarding commercial musical performances and making those available for download, but I have no plan to do that.
These are MIDI files that I created from the music score that we are using. So I'm looking for advice on what licensing applies to these files and also what are the common practices and experiences of other choral webmasters who have MIDI practice files, or for that matter, even audio recordings of the accompanist playing the parts, which I think would fall in the same category. Are people worrying about the copyright on these kind of files?
Thanks,
Jim
on November 5, 2009 3:43pm
Jim, it seems to me that one of the real downsides to the general public being asked to become the copyright police for industry groups like the RIAA and MPAA has been a certain amount of worry about copyright issues in areas where no worry is required. This is one of those areas.
No publisher, composer or lyricist is going to care one way or the other about midi part files being posted on the internet for some local school or community choir to download. That kind of thing is so "small potatoes" as to be not even worth the energy to write you a letter about it--if they were inclined to do so, which I don't think they would be. Technically, yes it's infringement. But it was also technical infringement back in the days when you recorded the parts with a portable cassette recorder and offered them to your choir. OTOH, I think it's clear that publishers, composers and lyricists know full well about the practice and either support it or simply don't care. Which is as it should be. I'm sure they'd prefer a great performance of the piece they sold you to hasseling you about part files, thus probably impacting the quality of the final performance, not to mention your business relationship with them.
There is in fact a digital license that one can buy through ASCAP and BMI that would address this use, but it's really designed and priced for internet broadcasters who are playing recordings that can be heard by the general public. It's pricey because it assumes a certain number of impressions as a bare minimum for broadcasters; since you're not broadcasting, but rather making them available to a very small set of people, I'd have to assume that your actual use would fall well below the license minimums.
If this issue really concerns you, I'd suggest putting the practice files on a password-protected "members only" section of your site, or using some other schema that would make the files available only to your members vs. the entire internet. I use a file-sharing service for mine; people without the exact link would be unable to access them since they're not indexed by search engines. And if you look around the forum, someone here started a website where one can post practice files to a password protected location and hand the password out to their choir members or students.
on November 6, 2009 9:42pm
Here's an interesting tidbit I've found during my search regarding Fair Use and educational institutes. A federal website for the National Institute of Environmental Sciences, clearly not an "educational institution" but instead a government agency under the umbrella of the U.S. Department of Health and Human Services, has many MIDI files of copyrighted music and has a whole page dedicated to supporting its claim of fair use.
(see http://kids.niehs.nih.gov/ and look for "Privacy, Copyright, Disclaimers" in the top left corner ). I'm still digesting this but the primary argument seems to be that the copyrighted materials are being used for educational purposes (even though this website is not an educational institution) and there is no commercial impact by having them made available to the public. There is also a citation to a Supreme Court case which provides some criteria for evaluating the claim for fair use ( Rose-Acuff Music v. Campbell ) which is a suit involving two music industry entities in which the ruling elaborates on a set of fair use criteria (described in a wikipedia article http://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose_Music,_Inc. ) which does not seem to restrict the "fair use" concept for application only by educational institutions.
I need to do some more processing of this information, but comments are welcome on this preliminary information. Bottom line seems to be that the use of these MIDI files for teaching purposes where no commercial benefit flows to the website operator and there is no detrimental commercial impact to the copyright holder seems to be endorsed by the federal government.
- Jim
on November 7, 2009 6:36am
Thanks for finding this, Jim. Interestingly enough, the US Supreme Court case cited appears to have nothing to do with "educational purposes" whatsoever, but rather only involves the "parody" exception. Furthermore, it turns out that the court simply remanded the case and that the parties wound up settling out of court, with the rappers eventually paying a settlement to the copyright owners. Also, one of the most famous musical parody artists, Weird Al Yankovic, always asks permission before making his parodies. While legally, he might not have to, he still does so.
However, are the MIDI files in question here actual musical parodies? If not, then the parody fair use exception wouldn't apply, and that citation is not supportive of this specific use. The NIEHS site also publishes lyrics with the MIDI files, with no mention of the copyright on the lyrics, so I think they're likely in violation, but that the copyright holders aren't aware of this little-known site (there are more links to ChoralNet.org than to the NIEHS site), and we don't know how many songs they've had to remove through take-down requests. (A little sidebar--the website looks like a "blast from the past," using web-design techniques from about 1997--extremely dated.)
I did a brief web search and came up with book citation that states that when dealing with copyrighted songs, "you must obtain permission to create a MIDI sequencer file of the work." The author also states that "the copyright owner has the sole right to create derivative works, and this includes creating sequences and MIDI files." The book is "Teaching Music With Technology" by Thomas E. Rudolph (2nd Ed, copyright 2004, published by GIA), with a forward by well-known synthesist, composer, music technology advocate and expert Don Muro (he's on the TI:ME Board, the NYSSMA Technology Committee, and gives workshops to educators). Here's a link to the Google Books page with excerpts of the book (the MDI file copyright info is on p. 419):
So, even music education experts don't appear to claim a blanket "fair use" exception for MIDI files. Therefore, I'd suggest always requesting permission from the copyright holders before distributing any MIDI files of copyrighted works.
on November 7, 2009 10:01am
Thank you for the references. I will check into those.
re: the NIEHS reliance on Campbell v. Acuff-Rose
I agree that the case originated in a discussion about parody work, but I don't think the ruling was specifically a ruling on parody fair use. The articles seems to say the ruling was generalized and resulted in the codification of § 107 in the Copyright Act of 1976, which does not seem to limit the fair use policy to educational institutitions but instead asks that four factors be considered. The following is the wording of section 107.
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.
on November 7, 2009 11:37am
Jim and others interested:
It may be time to post, yet again, a clarification regarding "Fair Use."
Jim, you are entirely correct in citing the 4 points regarding Fair Use as they appear in the law itself. Congress included them as very general guidelines to help courts in their investigation and interpretation of Fair Use. Somewhere in there it also mentions Fair Use for reporting, reviews, and yes, education, and I don't think you quoted that part.
However, the "Fair Use Guidelines" which I and others have quoted are NOT part of the law. They came out of an agreement reached BEFORE the '76 Copyright Revision was passed, between the Music Publishers Association representatives and representatives of NASM (the National Association of Schools of Music, the accrediting agency for college music programs) and the MENC (the Music Educators National Conference, which has since changed its name but not its acronym! and which is concerned with K-12 music programs and music teachers). I am not aware that any church representatives were included in those meetings, but the Fair Use Guidelines that resulted did grant important examptions to music used in church services. (And it's worth noting that representatives of the Musicians Union or any other performer organizations were not even invited, as well as the fact that neither NASM nor MENC can actually compel their members to do anything at all! The publishers were clearly more concerned with non-profit educational and religious use, and not at all concerned with commercial use, for which there are NO exemptions.)
THESE WERE NEVER PART OF THE LAW!!! Instead, they represented the narrowly-defined circumstances in which the MPA members agreed not to sue for infringement. Their goal was to do away with the blanket exemption in the 1909 law which required payment of performance royalties only in the case of "public performance for profit." And they DID get rid of that blanket exemption, so they accomplished what they wanted to.
I believe that since 1976, some of the provisions in those "Fair Use Guidelines" may indeed have made their way into the law, but I haven't researched it to make sure. The reason I originally did research it was that in the '80s my late wife was asked to edit some collections of folksong arrangements for OAKE (the Organization of American Kodály Educators), and we needed a crash course in what was legal and what was not.
And I really must repeat, unfortunately, the Facts of Life in regard to ALL laws. We are all entitled to our opinions, as this thread (and previous threads on the same subject) make abundantly clear, but OUR OPINIONS DON'T MATTER. The law does not mean what any of us think it means, nor does it necessarily mean what the lawmakers who passed it think it means. It means what the courts rule that it means. The system is one of checks and balances, and messy and long-suffering as it is, it's a whole lot better than any of the alternatives!
And it's also a fact that since the first copyright law was passed (The Statute of Anne in early 18th century England, in case anyone cares), a great deal of effort has gone into attempts to find ways around it. Sometimes those effort are legitimate, when society and technology move faster than the law itself and new situations arise, which is the fundamental discussion in the present thread. Sometimes they are not, and are simply attempts at making end runs around the law's clear meaning and intent. That's human nature. And both Napster and the RC Archdiocese of Chicago learned what can happen when you try to make an end run and drop the ball because of bad legal advice!
As I've said before, our goal should be to UNDERSTAND the law, and I commend everyone who has contributed to this discussion. Then we can make a free choice to break it if we feel justified, and Lord knows there are plenty of justifications around, not the least of which is the practice of publishers allowing desireable music to go permanently out of print. But in the U.S., copyright law is a branch of property law, and defines copyrighted works as someone's property, the theft or appropriation of which is therefore punishable as property theft. You don't have to like it, but that's the deal we have to live with.
All the best,
John
on November 7, 2009 9:08am
This response has little to do with Jim Korn's original question about copyright, but I don't place MIDI files out there for singers to use. I use a very cheap software program (there are probably many others) called MIDI2WAV to modify the MIDI files I create to MP3 files. Reasoning? To my knowledge, there is as yet no way to reverse-engineer MP3s into MIDI so that the resulting files can be imported into a notation program such as Finale and thereby make it possible to get a pirate score out of it. Furthermore, I place the files on a secure access site which only the singers can access by logging in with their login and passwords. It won't change any legalities but it at least might make someone more sympathetic that you tried to protect the copyright holder.
on November 7, 2009 9:36am
I also turn my MIDI files into MP3s (via iTunes), but for a different reason: more consistent results for the listener. When you distribute a .mid file, every user's computer has to synthesize it, and you get all kinds of different results. MP3s will sound the same to everyone.
on November 7, 2009 6:04pm
I do the same thing, Allen, for basically the same reasons. But also because, thanks to Ipods and the like, my choir members can listen to and work on their parts virtually anywhere. With MIDI, my members would require the use of a computer, which I'm guessing means that they'd have less opportunity to work with the files.
Also, my sense is that unless one specifically uses MIDI for music creation, chances are pretty good that one won't be all that familar with it in this day and age. Computer soundcards really don't come well-equipped for it anymore the way that they used to. If you look around for pages of MIDI sequences like the one Jim found above, you'll see that most of what exists was created back in the early days of the PC boom.
on November 7, 2009 12:34pm
Jim, perhaps another area for investigation of this topic: looking beyond what the myriad of copyright laws actually are (and the fact that, like many civil or business laws, they're open to a certain amount of interpretation), how have they been used/enforced in the real world?
Has any choral director ever received a request from an owner or publisher to take down rehearsal files? Has any actual legal action ever taken place, with perhaps an owner who claims infringement vs. a choral director who claims fair use? I realize that these sorts of issues are unlikely to make it to the legal action stage--it costs money to take things to court, which I'd imagine would deter all but the most serious cases from moving forward--but I'd be fascinated to find out whether there's anyone out there who either has real-life experience with this question, or knows of someone who has.
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