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Fair Use and class assignmentsDate: April 3, 2010 by Dan Kreider
 Hi all,
As part of my high school choir, I require my students to listen to a list of choral works with score. I have set up a "listening lab" of two boomboxes with headphones in my classroom.
My question - would "fair use" allow me to photocopy scores for the students to look at without having to purchase the requisite number of copies? To this point, I have been buying one copy and making one photocopy. It's not for performance - for performing, I would of course purchase the necessary number of copies.
Any guidance?
Thanks!
Dan Kreider Replies (14): Threaded | Chronological
John Howell on April 3, 2010 11:54am
Dan: This is covered in the Fair Use Guidelines (which as I've pointed out before, are NOT part of the law, but were a set of very, VERY specific situations that the lawyers for the Music Publishers Association agreed to).
You can indeed copy materials for classroom use (and not performance), but there's an arbitrary limit to how much--if I remember correctly it's up to 10% of a complete work. I suspect that you can still download the Guidelines from the MPA website, and they are covered in any copyright article or book aimed at music educators.
All the best,
John
on April 3, 2010 2:22pm
I am a bit confused about your lab situation. If there are
only two players (and I assume two headphones), only two students
can listen to the music at any given time, thus only two copies of
the score are needed in any given time. Is this correct?
Or are you trying to make photocopies of a score for everyone in the class?
Forget about the score, and consider it as "a book (and an audiobook)" situation. As it would be in a library, it is fine for students to share the purchased copies of the book at the library. But you would think it would be very strange, if there was a purchased book and a completely photocopied book available at the library, wouldn't you?
As far as I see it, "fair use" doesn't exist for us to create any copies legally. It is there for us to make a certain point or opinion more easily for education, or criticism or etc.
For example, let's say that you wanted to showcase a use of certain kind of chord progression in your music theory class. And you wanted to photocopy a passage from a score and distribute copies to the class. You can do that. Then, if you setup the lab for the students to listen to the particular passage, you could do that. But assume you want to showcase "Renaissance music" and wanted to photocopies an entire piece for class. You shouldn't do that because now you are photocopying the performable amount of the work. You may think "renaissance music" is public domain. Music is in public domain, but the particular version of the book might be copyrighted. If you want to avoid it, find the score which is published before 1923 (if you are in the US, and you don't have to worry about any other countries' copyright law), then use it. Or you can make your own version of the public domain piece (and of course, that would by copyrighted by you).
on April 3, 2010 5:06pm
Just to clarify, if you make your own version of a public domain work, you must use a public domain source. You may not use a copyrighted edition as the source.
Lee Barrow
on April 3, 2010 6:22pm
Lee: As a practical matter, that's quite true. But if you use a copyrighted source of a PD work AND know for sure that you are not using any of the editorial additions, it would be legal. But of course it would be difficult to know that unless you DID have a PD source. But once PD, always PD, and only the new "intellectual content" of a new edition is protected by the new copyright.
Whether that includes transcribing into modern clefs has never been clear to me, since (a) that is clearly an editorial accomplishment, but (b) the editor is changing nothing in the original notes except where they appear on the staff.
As to Kentaro's statement that fair use doesn't exist for us to create any copies legally, that is not correct, since it specifies exactly how much can be copied for classroom use and has nothing to do with making "a certain point or opinion more easily." But don't confuse the Fair Use Guidelines with the guidelines in the law itself, which are very general and not at all specific, and give broad points (4 or 5 of them, I think) intended to guide judges in adjudicating infringement suits. Those are NOT the Fair Use Guidelines negotiated by the Music Publishers Association.
John
on April 4, 2010 2:25pm
Copyright is intended to protect creative work. Anything mechanical, such as transposition, measure numbers, modernization of clefs or other notation, diminution, even a keyboard reduction of the choral parts, is not copyrightable.
However, orchestral reductions are copyrightable since they inevitably require substantial creative judgment since a literal reduction of all the orchestra parts would almost always be unplayable -- in effect they are arrangements. Figured bass realizations are a gray area (most of them don't show much creativity), but I'd err on the side of prudence there.
on April 5, 2010 9:10am
Kentaro: Under U.S. law the engravings (i.e. the page layout) are not copyrightable and never have been. Under several European laws they are, although for a comparatively short period of time, and I assume that's still true under the EU. Many people on both sides of the pond are not aware of this difference. I have no idea what the situation is in Japan.
And Allen, continuo realizations are indeed copyrightable. And the reason I know is that a friend and colleague from Indiana University moved to Chicago when he completed his graduate work, and was immediately tapped by the Chicago Symphony as keyboardist for their baroque works, because he could realize them from the figured bass and they didn't have to pay royalties on the published realizations that, as you say, are very often a great deal less than the composers would have expected!
All the best,
John
on April 5, 2010 11:52am
John. as far as I understand, new layouts can be and have been coyprighted under the US copyright law. It is under the "design" categories, I am assuming.
on April 5, 2010 4:09pm
Not only design, if there is a minimam level amount of creativity (no matter how crude, humble, or obvious it might be) in th new edition, that is copyrightable.
US copyright law's creativity requirement is not perticularly stringent, so the majority of the work can be copyrightable.
Transposition, piano reduction, changes of clef and such might not be a great creativity, but the combinations of such in new presentation (or new collection) are sufficienty creative enough for US copyright law to recognize new copyright.
Again to going back to original post, the US copyright is there "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Copyright does enable for creaters to continue to be creative or continue to provide the service required for users like publication and such, and fair use are there to make it easy for people to use it for science and education. US copyright law and its fair use clause and the first amendament of the US constituation are incredible assets to the educators. So please use them wisely so that your singers could have great education!
on April 5, 2010 7:04pm
Kentaro: Rather than argue the point, since you seem to be convinced that page layout is copyrightable under U.S. copyright law (although you are, I believe, the ONLY person who has ever argued so), may I ask simply where you find this "design" category in the U.S. law itself? It is certainly not in the section on music, and never has been.
And if there IS such a provision, the point which a court would have to decide is whether musical notation is in fact graphic art.
But if you can point out where this is in the law, I will have learned something new and I will thank you for it.
All the best,
John
on April 6, 2010 2:37am
Sure, John. Hope this helps!
As you wrote, "engraving (score, or layout)" had not been considered copyrightable since there is no direct mentioning of such under the US copyright law. However, because US joined Berne Convention and enacted the Implementation Act in 1988, the country must follow the scope of the convention. The Convention does state: "works of drawing, painting, architecture, sculpture, engraving and lithography" "works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science" as copyrightable.
And the Implementation Act states "The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act, satisfy the obligations of the United States in adhering to the Berne Convention and no further rights or interests shall be recognized or created for that purpose."
Since 1988, the US copyright law has covered the all the scope of the Berne Convention, and although "engraving (layout)" has not been directly mentioned in the US law, "pictorial, graphic, and sculptural works; (or design I would say)" under the law usually thought to cover that. And US publishers can now argue that score engraving (or score layout) or any new presentations or new editions of public domain materials are protected under this category.
And as the US copyright law only requires the minimum level of creativity (Feist Publications vs. Rural Telephone Service) for a work to be copyrightable, majority of the works can be copyrightable.
However, the US copyright law does not protect the certain contents of the works such as public domain content, or datas which are commonly available, or anything so mechanically can be drawn from certain data or public domain work. Therefore, things like "transposition" would have very little chance to be copyrightable by itself. But the implementation of transposition (and other things) with new presentation can be copyrightable as a whole (for example, a phone book can be copyrightable as a whole, which only has two aspects, data commonly available and new presentation wchich does have a tiny bit of crude and humble creativity). But transposition itself is hardly copyrightable alone, so someone can do same things (like someone else can create their own phone book).
on April 4, 2010 5:48pm
I do not see any reference to public domain here. The "fair use" would allow 10% and only for the use in face to face teaching in the classroom. Copying the entire work would not be fair use.
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