The Copyright Monster and Music Educators: We CAN All Co-Exist
by Ted Piechocinski, J.D.
Napster. Peer-to-peer file-sharing. RIAA lawsuits against 13 year-olds and grandmothers. Grokster before the U.S. Supreme Court. We can hardly pick up a newspaper, news magazine, or a trade journal these days without finding an article about these and other issues facing the music industry. The articles might momentarily pique our interest but for the most part, music educators tend to disregard them as not relevant to their everyday lives. Nothing could be further from the truth. Issues of copyright impact music educators in a constant barrage of circumstances and situations: copies of original parts so that a pristine set can be kept; rights clearance from publishers in order to make CDs or DVDs as fund-raisers; permission for special arrangements, and; simplifying parts or re-orchestrating arrangements in order to play a concert piece on the football field.
Many music educators have made strides in recognizing copyright issues and taking steps to acquire appropriate clearances and licenses. Unfortunately, there are still many other music educators who pay no heed to copyright concerns, either by feigning ignorance or through simple disregard for the issues and rationalizing with many excuses: "the kids are constantly losing their parts so I copy the originals;" "I don't have time to contact all of those publishers to ask their permission;" "It's OK to copy without permission because we're not making any money from the copies." There is no excuse for ignorance of copyright laws and the responsibilities of music educators to respect and uphold those laws.
It's time to face this mythologized monster head-on and take steps to learn about and co-exist with the world of copyright.
There are three aspects of copyright-related issues that will be explored in this and the following issue of the Bands of America newsletters: 1) copyright basics, 2) recognition of copyright issues; and 3) how to approach music publishers to acquire appropriate licenses.
Not intending this article as a scholarly treatise on the law, here are what I consider to be the two most significant provisions of the U.S. Copyright Act:
Those who create (in copyright terms, a work is "created" when it is first set down in tangible form, which includes paper, computers, or any place the work is viewable or retrievable) a musical composition are instantly granted copyright protection for that work. The creator of that work is instantly granted a bundle of exclusive rights to that work including, the right to copy the work, make or authorize derivative works (i.e. arrangements), to initially perform it, and to distribute copies.
Creation creates rights; this part of the equation should be very clear. While creation and copyright ownership confer exclusive rights, they are immediately tempered by the most misunderstood and abused provision of the Copyright Act, the provision referred to as the "fair use" provision. Despite the exclusive rights conferred upon creators and copyright holders, the fair use provision serves as exceptions to those rights. Does this seem to contradict the "exclusive" rights? Sure it does, but there is a reason: to recognize a fair use despite exclusive rights allows the fruits of those creative efforts to be used in ways that benefit society as a whole. In areas including criticism, research, and teaching, among others, copyrighted materials may be used without explicit permission. But, the fact that teaching and "educational usages" are recognized as a fair use has lent itself to gross abuse and misunderstanding. To think that any usage relating to a school is, therefore, automatically an "educational use" is ludicrous and wrong. The fair use exceptions must be construed carefully, not carelessly.
Fair use for "educational purposes" does not give educators carte blanche to copy and otherwise use copyrighted materials. Educational uses contemplated by the fair use provision include excerpts of copyrighted materials for analytical purposes (such as in music theory or music history courses), research, or purposes of music criticism. "Fair use" never applies to performances or the like. Even if performances can justifiably be linked to a classroom activity (i.e. rehearsals), that is not the kind of classroom use to which fair use applies. Fair use does not apply when the only rationale is simply to avoid purchase. Copying a school-owned CD (or concert band composition, published orchestra arrangement, etc.) for another teacher to use in her classroom is not a fair use even if it is, arguably, an educational use (if educational only because it is music being performed in a school context); it is simply a way for the second teacher to avoid purchase of the copyrighted item. These are not difficult concepts but it is amazing that many teachers look the other way in analyzing these issues. The educational use exception in the fair use provision of the U.S. Copyright Act is simply not as broad as some educators like to pretend it is.
Simple rule #1: Copying (by photocopy, audio duplication, or downloading) of copyrighted material simply to avoid purchase is invariably not a legitimate fair use.
Copyright owners enjoy certain exclusive rights, including the right to determine when, if, and how their works may be copied and under what conditions, if any, derivative works (i.e. arrangements) may be made. Therefore, along with the concept, stated above, that copying to avoid purchase is not an allowable educational (or any other) use, today's music educator must be aware of and take proper steps to acquire proper permissions necessary to use copyrighted materials.
Permissions to perform music you have purchased need not be of great concern. If you have legitimately acquired (i.e. not photocopied from your buddy's music library in a neighboring school) a piece of music and your school district has acquired the typical blanket performance licenses for school music performance through ASCAP and/or BMI (performing rights organizations that collect performance money through licenses and then distribute those revenues to composers, arrangers, and publishers) performance is not a problem. Very rarely do music teachers have to be concerned with performance rights; the exception is in staging musicals, which require separate agreements with agencies such as Music Theater International and others who deal with "grand rights" aspects of staged musicals.
Purchasing a piece of music does not give you the authority to photocopy parts (unless a forward-thinking publisher has included a license giving you explicit permission to make copies). The truth in music print publishing is that music wears out through use. A great piece of music should be played often and, therefore, should wear out from such use and, much like a favorite shirt that we love can simply wear out from being worn with love, there comes a time to replace that shirt with another (of the same kind, of course!). Many music directors rationalize copying of parts because students lose parts too easily and, therefore, the director wants to keep a pristine copy in the files. THIS IS NOT AUTHORIZED; it is a violation of copyright; you do not have permission (unless explicitly given) to make unauthorized photocopies.
Simple rule #2: if you want to duplicate, arrange, or record , a published work, or otherwise alter its fundamental character, you need to get permission from the publisher. Along with this rule goes the following: DO NOT ASSUME ANYTHING; WHEN IN DOUBT ABOUT THE RIGHTS TO A WORK, ASK!
School music program directors often offer CDs and even DVDs to students and their families, often to commemorate a school year and, in some instances, to sell them to the community as fund-raisers. These are great ideas, for sure, in that they are great ways to make money for music programs and to create a legacy of the students' efforts. But, ANYTIME you want to do such projects (other than making one rehearsal tape for analytical or teaching purposes), you must get permission. The most typical kinds of permissions you will need to consider are:
Permission to Arrange:
As a teacher, you are allowed to simplify parts in order for them to be more accessible to students; you could even assign parts for one instrument to another if you need to (for instance, you don't have a bassoon but want to provide a critical line in the tenor saxophone part). These are no problem. But, changing a concert band work for use on the football field often entails significant re-working of the form and instrumentation of the original work. This is more than simply tweaking the work and is, rather, a re-orchestration or arrangement of the original piece. In this case, you must get specific permission from the publisher in order to do this "special" arrangement. Adding percussion parts that are not in the original constitutes a new arrangement of work. Permission is required. Chopping an existing work into segments in order to fit into time constraints can easily alter the fundamental character of a work and, therefore, to avoid violation of the publisher's/copyright-holder's exclusive rights, permission must be sought and acquired.
Bands of America does a tremendous job of making sure that participating bands are performing music that they have the right (permission) to perform at BOA events. Their resource web page has great links and tips to acquire permissions.
If you are planning on making multiple copies of your band's performance(s) and either selling the resulting CDs as fund-raisers or are just wanting to give your students mementos of a successful season or school year, YOU MUST TAKE STEPS TO ACQUIRE MECHANICAL LICENSES FOR THESE CDS. A mechanical license gives you permission to record and duplicate performances on CD (and DVD, which we'll discuss next) or other means of audio duplication. Here are the quick tips for acquiring mechanical licenses:
- a. Most publishers have agreements with the Harry Fox Agency (HFA, harryfox.com) in which HFA serves as the clearing house for mechanical licenses. However, HFA does not typically deal with requests for less than 500 pressings; therefore, for requests of less than 500 copies (common in school music programs), you must contact the rights holder (usually the publisher) for each song you intend to include on the CD.
- b. Currently, there is a set rate for mechanical licenses based on the length of the prospective recording for the CD: for recordings less than five minutes long, the rate per CD pressed, per song, is 8.5¢. If over five minutes in length, the rate is 1.65¢ per minute or portion thereof.
The "good" news in this issue is that, once a commercial recording has been made of any song, permission for anyone else to record that song cannot be denied. This is the concept of "compulsory license" . The bad news is, of course, that it takes time to a) find the proper parties from whom to request mechanical licenses, and b) to give publishers sufficient time to respond regarding your license request.
The answer is (simple as it sounds) to plan ahead; go after the proper permissions/licenses with plenty of time to spare. Publishers are not usually swayed by panic-induced requests brought on by your own procrastination. Be nice to them.
Keep in mind, too, that, even though a piece you want to include on a CD (or DVD) is a public domain work, THAT DOES NOT MEAN THAT THE ARRANGEMENT YOU BOUGHT IS PD; a published arrangement of a public domain composition is still copyrighted by the publisher (to the extent that they have changed/altered the public domain composition) and, therefore, you need to seek permissions for these arrangements, too.
When you contact publishers about these mechanical licenses, feel free to ask them to give you a reduced mechanical rate or, better yet, gratis. Some publishers will be so glad you even sought them out for permission that they may well agree to a gratis license for the usage.
Where mechanical licenses deal with audio recordings only, synchronization licenses are required anytime you want to combine music audio with images.
The most typical instance of synchronization usages in school music programs arise when the music director wants to videotape a performance. By putting audio (the music being performed) together with images (the ensemble performing), a need for a synchronization license exists.
As in making an audio recording of a rehearsal for teaching purposes, so to can you videotape (the term is an anachronism since "taping" is often done these days direct to DVDs) a rehearsal. The problem comes when you want to make multiple copies of a taped performance and either give them away or sell them as fund-raisers. As with requests for mechanical licenses, it is up to you to contact publishers or whomever the rights holder might be (start with the publisher), and ask for permission to do the video taping and duplication you desire and ask for a synchronization license.
Unlike the set/statutory rates for mechanical licenses, there are no set fees for synchronization licenses. While fees may therefore vary greatly, it is not inconceivable to see publishers ask for synchronization fees of about 17-25¢ per song, per tape/DVD duplicated. Unlike the provision for compulsory licenses described above, there is no such provision for synchronization licenses. A publisher can simply deny this right with or without any explanation. Again, when you write to a publisher to ask for a synchronization license (most often just referred to as a synch license), you loose nothing by asking for a greatly reduced rate or, even better, a gratis usage. Doing the right thing by seeking out permissions will often win you the praise and respect (not to mention a price break on licenses) from publishers.
Simple rule #3: It does not matter whether or not you will be charging a fee for students or community members to have copies of CDs/DVDs; it is irrelevant; if you want to use something (i.e. music) that is owned by another (i.e. a publisher), ASK FOR PERMISSION.
In this very brief foray into the world of copyright for music educators, we must make at least one slight mention of materials found on the Internet. While not addressing peer-to-peer file-sharing issues in this article, it must be understood and remembered that, just because you find information, text, lyrics, music, and images online, that does not mean they are free and yours for the taking. Using a terrific image or artwork reproduction on your programs or as part of your ensemble logo may well be a violation of copyright.
Here's the bottom line: whether found on the Internet, a CD, or on printed music, if the material is copyrighted, it is up to you to seek permissions and/or proper licenses for proposed usages. The continued strength of our music industry, yours and mine, is based on mutual recognition, recognition, respect, and regard for copyright ownership.
About the author:
Theodore J. Piechocinski, Associate Professor and Director of Music Business at Indiana State University, holds a Juris Doctor degree from the Cleveland-Marshall College of Law, an M.M. in saxophone performance from New Mexico State University, and a B.S. in music education from the University of Missouri-Columbia. He has worked as an Assistant Director of Law for the City of Cleveland (OH) and for many years within the music industry as Senior Vice President of Cherry Lane Music Company, President of MusicExpresso, a revolutionary, online publishing company, Vice President for Marketing and Business Affairs for Ludwig Music Publishing Company, and Director of Business Affairs for The FJH Music Company. In addition, he served three years as instrumental music director at Homestead High School in Ft. Wayne, IN. Prof. Piechocinski has published numerous articles and spoken to many groups across the country on issues of music copyright law, employment law, contracts, the music industry, and the business of music education.