384 lines
19 KiB
Plaintext
384 lines
19 KiB
Plaintext
From: daver@felix.UUCP (Dave Richards)
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Subject: US Copyright (was Re: Dealing with ASCAP
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Date: 23 Apr 91 00:39:33 GMT
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THE COPYRIGHT LAW AND THE MUSICIAN David Richards
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A Guide to the 1976 Copyright Law, Revised 6/90
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updated to include the 1988 "Berne Act" 4/22/91 posting
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INTRODUCTION
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This article describes the United States Copyright Law insofar as it relates
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to musicians (including singers) and members of organizations which utilize
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music, such as schools, churches, amateur and professional musical groups or
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clubs, etc. Information on the various licenses required to perform or record
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musical works is included, however this is not a step-by-step guide. More
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complete information is available from the sources listed at the end of the
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article. For legal advice consult a copyright attorney.
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From time to time a case will come before the Court which will result in a
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ruling on "fair use", which means a use of copyrighted material for which per-
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mission is not required. One example of this is the decision allowing the tap-
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ing of radio and television broadcasts in the home. These decisions are not
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incorporated into the law, but must be considered along with it. Some of these
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rulings are included below, where appropriate.
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SECTION I: What is Protected by Copyright
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The idea behind the law is that the product of a person's mind (in this case
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a musical composition) is just as much his or her property as the product of
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a person's hands. Nobody works for nothing, and authors and composers have
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to pay for rent and food just like everyone else. If they could not earn en-
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ough from creative work such as writing songs which the public likes, they
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would be forced to work at something else. The result would be much less mu-
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sic for everyone to enjoy. The copyright law exists to ensure that songwriters
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(and other writers) can make a living at it, and to protect their creations
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from misuse.
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The first U.S. copyright law was enacted in 1909, and took effect in 1910.
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Any musical work published prior to 1910 is in the public domain (it has no
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copyright protection). A work published between 1910 and Dec 31, 1977 may be
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protected under the 1909 law, but there are several ways that protection could
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have been lost. The protection for a work published under the 1909 law lasted
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for 28 years at which time it could be renewed for another 47 years.
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To retain copyright protection, the copyright holder MUST actively prosecute
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all known infringers. If infringement is allowed or ignored by the copyright
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holder, the work will be considered to be in the public domain. As a result,
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many infringements are prosecuted that woule otherwise be considered minor,
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and not worthy of the effort.
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Also, under the 1909 law a copyright notice must appear on all printed copies
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of the work. If that wasn't done, or if the copyright hasn't been renewed,
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or actively exercised by the owner, or if the total 75-year period has expired,
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the work is in the public domain. However, a new arrangement of a public do-
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main piece would be subject to copyright protection.
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The copyright law was essentially rewritten in 1976, and the new law took ef-
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fect January 1, 1978. The 1976 law was not retroactive, in other words it did
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not restore copyright protection to any work that had fallen into the public
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domain. Once copyright protection is lost, it can never be regained. For com-
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positions (or arrangements) published after January 1, 1978, the copyright is
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effective until 50 years after the death of the author(s). If the author re-
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mains anonymous or the work was created for hire, the copyright is effective
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for 75 years from the date of first publication.
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As if those weren't enough laws to keep track of, the United States has recent-
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ly entered into an international treaty, the Berne Convention for the Protec-
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tion of Literary and Artistic Works. This caused some changes to the existing
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law and took effect on March 1, 1989. One of the revisions to the law made as
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a result of the Berne Act was the elimination of the requirement to put a copy-
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right notice on all copies of a published work. For works published for the
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first time after March 1, 1989 the inclusion of the C inside a circle (or P
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inside a circle for a recording label) is purely voluntary. Its omission won't
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cause a loss of copyright protection. However, publishers are encouraged to
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continue including it. One reason is to make it easier to prove "wilfull
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infringement" in a suit for damages, resulting in a higher award amount by the
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court. For works first published prior to March 1, 1989 the notice must still
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be included in order to preserve protection, even in future printings.
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At present, a copyright exists from the moment the work is first written down,
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whether a copyright notice is included or not. However, the work must be reg-
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istered with the U.S. Copyright office before an infringement case can be init-
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iated.
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The copyright holder might be the original writer of a piece, or someone who
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has been assigned ownership through contractural agreements (such as a publish-
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er). The copyright holder has the following EXCLUSIVE rights as defined in
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Section 106 of the 1976 law:
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1. To reproduce the copyrighted work in copies or recordings.
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2. To prepare derivative works based upon the copyrighted work.
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(A musical arrangement is a derivative work.)
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3. To distribute copies.
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4. To perform the work publicly.
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5. To display the work publicly.
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An infringement occurs when someone other than the copyright holder assumes
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one of these rights without permission. As musicians we are mainly concerned
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with items 1 through 4. These items are addressed in more detail below. They
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are divided into sections on copying, arranging, recording, and performing.
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It is often asked how much a person may use of a copyrighted work without it
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being considered an infringement. Everyone seems to have their own rule, but
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this is not called out in the law. It is open to the interpretation of the
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court. So ANY recognizable passage is risky (samplers take note). The single
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exception is for a teaching situation as described below.
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SECTION II: ON PAPER -- Copies and Arranging
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A. Copies
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For the purposes of this section, "copying" could mean photocopying, photo-
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graphing, writing music out by hand, or any method of duplication that results
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in a visually-perceptible copy. It is considered visually-perceptible even
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if a machine is required to read it, such as a computer or microfilm reader.
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The law not only prohibits anyone other than the copyright holder from making
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copies (#1 above), but also prohibits distribution of copies (#3). In other
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words, one could be prosecuted for both as separate offenses. Or, if illegal
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distribution was taking place on a large scale, the printer could be prosecuted
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under section 106(1), and the distributor under section 106(3).
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B. Arranging
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You may not create an arrangement of a copyrighted work without written per-
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mission from the copyright holder (usually the music publisher in this case).
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This permission must be obtained before starting work. If permission is
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granted to do an arrangement, it will allow the arrangement and a limited
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number of copies to be made in exchange for a fee. It is important to remember
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that even if permission is granted, YOU DO NOT OWN YOUR ARRANGEMENT. It re-
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mains the property of the copyright holder. If a greater number of copies were
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made of the arrangement than permission was given for, they would be regarded
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the same as any other illegal copies.
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You may secure permission to do an arrangement from the copyright holder dir-
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ectly, but you may find it easier to do this through a representative. The
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National Music Publishers Association created the Harry Fox Agency specifically
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to act as an intermediary between publishers and the music user. (see the ap-
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pendix for address.)
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Summary of things you may not do with copyrighted material on paper:
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You may not copy printed music that you have purchased, except as
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noted below under "Fair Uses".
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You may not copy someone else's illegal copy.
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You may not write down the words or music from a recording.
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(transcribing)
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Fair uses, or things you may do with a copyrighted work on paper without
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permission:
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For educational purposes, the instructor may make one copy per student
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of up to 10% of a composition for class study, as long as that 10%
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does not constitute a performable unit.
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You may edit or simplify a piece of printed music that you have pur-
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chased, provided that you do not alter or distort the fundamental
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character of the work, and your changes are marked directly on the
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original.
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You may write parody lyrics to a song, as long as you use very little
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or none of the original author's lyrics and you do not write down
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the music with your lyrics.
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SECTION III: Recording
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Note: Throughout the following section the term "recording" or "record"
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means any type of recording medium such as phonograph records, audio and
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video tapes, etc.
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You may not duplicate a recording of a copyrighted work.
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You must have permission to record a performance of any copyrighted piece of
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music. However, you may make one and ONLY one recording of a performance for
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study, critique, or archival, etc. (Section 107)
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Producing an album for sale:
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You must have permission to produce a record of a copyrighted work. The copy-
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right holder may refuse to allow a work to be recorded, however once permission
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has been granted to someone, it cannot be withheld from anyone else. So if the
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arrangements you wish to record have ever been recorded before (in any style),
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you will automatically get permission. Permission is given in the form of a
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"mechanical license". This license is obtained by paying a fee to the copy-
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right holder. Once again you can avoid having to deal with each artist or
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music publisher individually by using the Harry Fox Agency.
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The information required for the issuance of a mechanical license is:
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1. The name of the person to whom the license is to be issued.
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2. The title and writers of the composition (and publishers if known).
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3. The performing artist(s).
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4. The playing time of the composition(s) in minutes and seconds.
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5. The release date of the recording.
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6. The number of copies you plan to make.
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You will get a response from the agency in the form of a contract granting you
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the license to record at the going rate, which is currently $.057 per compo-
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sition or $.011 per minute of playing time, whichever is greater, per record,
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tape, or CD made (as of November 1, 1989).
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The Harry Fox Agency does not represent every publisher, and they cannot grant
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a license for publishers that they do not represent. So the contract they send
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you may not include all your selections. For any material that doesn't appear
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on your contract you must negotiate with the copyright holder directly. Every
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item on your recording MUST be licensed to avoid serious legal trouble.
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Rearranging a piece for a recording:
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Section 115(a)(2) of the law says: "A mechanical license includes the privilege
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of making a musical arrangement of a work to the extent necessary to conform it
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to the style or manner of interpretation of the performance involved ... but
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the arrangement shall not be subject to protection as a derivative work except
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with the express consent of the copyright owner."
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That sentence is open to interpretation, but seems to say that if you have per-
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mission for a recording via a mechanical license, you may create an arrangement
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of the work for that recording. But you may not perform that arrangement any
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other time or place, or claim copyright protection for it unless you have ex-
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plicitly been granted ownership of it by the copyright holder.
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Summary of things you may not do with recordings without permission:
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Duplicate them.
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Transcribe from them (write down the music or lyrics, see above).
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Play them over a PA system to a large group of people (see performing).
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Make a recording of a performance for sale.
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Things you may do with recordings of copyrighted works:
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You may make one recording of your performance for review or archival.
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You may purchase a recording and play it for your own entertainment.
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You may loan, give or sell a legal recording to someone else, just like
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any other property. (you own the physical recording, but not the
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sounds that it contains.)
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SECTION IV: Performing
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This section is included for the benefit of individuals or groups that put on
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public concerts or shows.
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According to the law almost every public performance of a copyrighted work re-
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quires a license for that purpose. The exceptions are clear:
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1. Performances in the course of religious services at a place of worship.
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2. Face-to-face teaching activities at a non-profit educational institution.
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The law defines a "public" performance as one "at a place open to the public
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or at any place where a substantial number of persons outside the normal
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circle of a family and its social acquaintances is gathered." The court
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has found that even a performance at a private club is a "public" performance.
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The law requires a license not only for a performance by live musicians, but
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also for performances by means of a record or tape player, or radio-over-loud-
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speaker system.
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If a performance takes place without a license, it is the owner of the estab-
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lishment that is liable for copyright infringement, not the musician. However,
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if an organization has rented a hall or auditorium for a performance by paying
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a fixed price, the court has found that the renting person(s) is liable for the
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infringement, since the establishment owner had no share of the profits (and
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presumably no control over what material was performed).
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Organizations exist for the purpose of issuing licenses to perform. The main
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ones are ASCAP and BMI. They take care of distributing the show royalties to
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their publisher members, which immensely simplifies the work of the person
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organizing the performance.
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Some music publishers are represented by ASCAP, some are represented by BMI,
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and some are represented by both. ASCAP is the older organization, and rep-
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resents some 40,000 authors, composers and publishers. BMI is newer, but
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larger, having over 80,000 members. To determine if your material is ASCAP
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or BMI, you may contact the indexing department of the ASCAP and BMI offices
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closest to you. There are offices for both organizations located around the
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country. To find them, contact the head office listed below, or consult the
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telephone directory if you live near a major city.
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ASCAP and BMI do not issue licenses for dramatic musical purposes, such as
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opera, ballet, musicals, or any performance that includes a story or plot,
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dialog, dance, pantomime, etc. Permission for these types of performances
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is still required, but must be obtained from the copyright holder directly.
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However, a concert including excerpted musical works from a dramatic show (or
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shows) would be covered by an ASCAP or BMI license.
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Most auditoriums, clubs, lounges, etc, already have blanket licenses from both
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ASCAP and BMI. As a musician, the only time you should be concerned about this
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is if you rent a hall or auditorium for a public performance, or if you give a
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public performance on your own property.
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C. Music in Motion Pictures and Television
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Although this probably applies to very few people reading this, it is included
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for completeness. The recorded use of music in combination with visual images
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("synchronization") doesn't fall within the scope of the compulsory license
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provisions of the Copyright act. This means that each of these uses must be
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negotiated individually with the copyright holder. This may also be done using
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the Harry Fox Agency synchronization department as an intermediary.
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Summary on performing:
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You may not perform any copyrighted work in public without permission,
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given in the form of a license.
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Performing you may do without a license:
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You may perform for family or friends a legal arrangement that you have
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purchased, or one that you learn by listening to a performance or a
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recording (but remember not to write down the music or lyrics).
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SECTION V: Penalties for Infringement
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The minimum fine for "innocent" infringement is $200 per infringement. With
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the passage of the Berne act, the maximum fine has been raised to $20,000.
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For "wilfull" infringement the maximum fine is now $100,000. Each unauthorized
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performance, recording, or paper copy of a work is a separate offense. For
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example, if you made ten copies of something, or performed it ten times, you
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could face a fine of one million dollars. This is the statutory rate. It is
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the choice of the copyright holder whether to accept the statutory amount or
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to request the actual damages including court costs and attorney's fees.
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If it is a corporation that infringes, not only is the corporation liable, but
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the officer of the corporation that is responsible for the infringment is also
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PERSONALLY liable. He/she cannot hide behind the corporate status. You should
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also be aware that according to federal law a fine for "wilfull injury" cannot
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be discharged by bankruptcy. So there is no escaping a fine of this type.
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APPENDIX: CONTACTS
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For a license for musical concerts and other non-dramatic performances contact:
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American Society of Composers, Authors and Publishers:
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ASCAP (212) 595-3050
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One Lincoln Plaza
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New York, NY 10023
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- and/or -
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Broadcast Music, Inc.:
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BMI (212) 586-2000
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320 W. 57th Street (800) USA-BMI1
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New York, NY 10019
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For permission to do an arrangement, a license to record, or a license to
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produce a dramatic show incorporating music, contact the particular music
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publisher(s), or:
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The Harry Fox Agency, Inc. (212) 370-5330
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205 East 42nd Street
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New York, NY 10017
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If you would like your own copy of the copyright law, or for information about
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the copyright status of a particular work, or if you would like an application
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form to register your own composition, recording, or your arrangement of a
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public domain work:
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The Copyright Office (202) 479-0700 public information
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Library of Congress (202) 707-9100 forms ordering (leave msg.)
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Washington, DC 20559.
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The complete text of the law is included in circular #92, but there are other
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circulars and information packets available containing excerpts of the law
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that pertain to a particular activity. So be specific when you inquire.
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-------------------------------------------------------------------------
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