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Author Topic: Question on copyrights...  (Read 1798 times)
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gregs70

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« on: Aug 28, 2017, 06:23PM »

I play in a big band.  The last of the original founders has retired.  He donated all the originals in the book to a local high school, but let us have the books, which are a mixture of public domain and published charts. 

1) If we buy a .pdf version of a published chart, keep it on a computer, and play the copies, is that legal? To me, that would be the same as buying the .pdf and printing them out for the book. 

2) If we buy a printed copy of the original, store it for safe keeping, and play the copies, is that legal?  To me, that would be the same as keeping the original for safekeeping and not having to worry if the dog ate somebody's book or if it got left/stolen at a gig.

3) If we play the copies at a free performance where the band does not get compensated without owning the originals, paper or .pdf, is that legal?

Some of the members have a "why worry, we'll never get caught, and if we do it'll be a slap on the wrist" attitude, but others of us (me, for one) don't want to rip off composers and publishers. 

Thanks!



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« Reply #1 on: Aug 28, 2017, 06:35PM »

Copyright law allows you to make one copy for personal use, so items 1 and 2 are legal.  Provided you keep the originals.

Item 3 is a question.  In theory you are still doing something illegal, but who's going to go after you?  Especially if you are performing for free.

Remember, the problem occurs if you do something illegal and get caught.  And the burden of proof is on the accuser.  And there isn't any monetary damages if you aren't being paid.
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« Reply #2 on: Aug 28, 2017, 07:29PM »

Quote
1) If we buy a .pdf version of a published chart, keep it on a computer, and play the copies, is that legal? To me, that would be the same as buying the .pdf and printing them out for the book.

When you bought the PDF were you also buying the right make and use copies in certain ways?  That should be made clear in the sale if the PDF seller is a real representative for the copyright holder.

Otherwise, what you have is just a "study score"


Quote
2) If we buy a printed copy of the original, store it for safe keeping, and play the copies, is that legal?  To me, that would be the same as keeping the original for safekeeping and not having to worry if the dog ate somebody's book or if it got left/stolen at a gig.


I don't believe this qualifies as "personal use".  You're using the copies to perform in public and to rehearse for those public performances.

If the copies did get stolen at your gig, what would you do... make another copy from the original? Now you've made two copies.

 



And there isn't any monetary damages if you aren't being paid.

There are  monetary penalties for copyright violation, even if you didn't make money at it,even if you didn't try to make money at it, even if you lost money at it.
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« Reply #3 on: Aug 28, 2017, 07:53PM »

I would guess that you would be hard pressed to find an amateur Big Band that isn't using "illegal" copies of charts.  I say this as somebody who has played in at least 6 Big Bands in the area.  All books appear to be a mixture of originals and copies.  And I'd bet that a lot of the copies are not of owned originals.

Note to Rob: If your personal use copies are lost, damaged, or stolen, you are allowed to replace them.  You must maintain the originals and cannot sell or give a set of copies to somebody else.

Also note that the person claiming infringement needs to declare for each instance.  So you may be stuck with a Cease and Desist letter for an arrangement or two.
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Bruce Guttman
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« Reply #4 on: Aug 28, 2017, 08:16PM »

I remain very skeptical, until some clear authoritative explanation otherwise is produced.

The concept of backup copies applies to software, not printed materials.

The "fair use" doctrine allows small portions of a work to be copied, not the whole thing.


However, I agree that gregs70 can almost certainly get away with the proposed copying even if it isn't legal.
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« Reply #5 on: Aug 28, 2017, 08:22PM »

You are not allowed to photocopy something that is protected by copyright unless you are using it in education to teach a class, or critiquing it:

Quote
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:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.

Photocopying sheet music definitely has an effect on the potential market and value of the copyrighted work.

photocopying an article out of a science journal for your high school class to read and discuss does not. They weren't going to ever buy that journal, but now they are exposed to it.

printing the sheet music in its entirety as a part of your critical review in a newspaper is probably illegal, but printing a phrase or two to show how bad it is is probably not.

photocopying it for your band to play is not part of research or scholarship. But you also probably never would get in trouble either.

there's a reason why a lot of music has a picture of a copy machine with an X over it. It's not legal to copy it. Fair use cases tried in court seem to only encompass CDs / DVDs and software for making backup copies. Also there is a legal precedent for favoring fair use of non-fiction works far more than creative works.
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« Reply #6 on: Aug 29, 2017, 12:34AM »

My non-lawyer opinions only:

Trying to interpret copyright law to apply to things that didn't exist when the law was written leads to all sorts of confusion.  Computers are a major source of that confusion.

For example: the originals for lots of music these days come as PDF files.  The "backup copies" provision clearly allows you to make a separate copy of the PDF in case your computer crashes.  But a second copy of a PDF is useless as far as performing/rehearsing the piece.  So can your "backup copy" be a physical performable printout?  And if you adopt the attitude that that is permissible, must you give up your protection against computer crashes?

Example 2: I see more and more people scanning in music and performing from a tablet.  Is every one of those a copyright infringer?  To take it further - the scanning people may not own the music; it belongs to the group they play in. 

Rather than trying to resolve those sorts of conundrums, I've always preferred to look at it from a perspective of whether or not the owner of the copyright is being deprived of any revenue.  If a piece was paid for then the owner received his revenue.  No one is going to buy another copy in order to make the copyrighted material useful.

Whether or not buying a piece of music entitles you to performance rights is a separate question from how many copies you can make.  Hopefully, performance rights (or lack thereof) are explicitly addressed on the music itself.

As a side note, it wasn't that long ago that one of my brass quintets was barred from performances at a farmer's market because the market operators were worried that we did not have ASCAP/BMI membership.  Technically, we would have made some money, but not enough to cover gas to and from the farmer's market.

I do wish that copyright law would be modernized to address issues that computers create.  But that's pretty low on this list of things Congress needs to look at...
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« Reply #7 on: Aug 29, 2017, 04:52AM »

Copyright law allows you to make one copy for personal use, so items 1 and 2 are legal.  Provided you keep the originals.



What?  When did this happen?  I have never heard that is true. 

I think 1 is legal and 2 definitely not. 
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Tim Richardson
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« Reply #8 on: Aug 29, 2017, 05:39AM »

As a person who depends upon the sale of new music for a substantial portion of my income, this is a subject that is very important to me.  Composers and arrangers, for the most part, aren’t wealthy (although there are exceptions).  We don’t receive a salary for working a 40-hour week (sometimes much more!).  A composer receives royalties from a print license any time sheet music of his song or a folio or collection of his songs is sold.  We typically earn 10% of each new chart sold.  Most of my charts sell for $50.00, so yeah, I’m making five big bucks, before taxes, for each chart.  Giving away, selling, or trading my charts takes those five dollars away from me.  Do it enough times and it starts to add up.

Every time I go out and do a clinic, I look in the band’s folders.  I check for photocopies.  I know some directors do this as a safety margin against kids who lose their music.  This may be necessary, even smart, but it is NOT legal.  Publishers make single, replacement copies of their music available, for a nominal fee, for just such an occurrence. 

Another thing I look for is “traded” charts.  If I’m working with ABC High School, and they have photocopied music that is stamped “Property of XYZ Music Department”, it means someone is stealing.  I usually take the director aside and gently explain to him that in addition to being illegal, it sets a terrible example for students.   

Anything that is copyrighted can LEGALLY only be bought or sold ONCE.  This doesn’t mean it doesn’t happen, and often it happens right out in the open (second-hand bookstores come to mind)…but ONLY the owner of copyrighted material has the exclusive rights to sell, reproduce, and distribute copies of their work.  This may or may not apply to older, permanently out-of-print music, especially if the publishing company no longer exists, or if the copyright has not been renewed.  The length of time that a work is protected by copyright (for a work first published after January 1, 1978) is the life of the composer plus 70 years. That means for the entire lifetime of the composer and 70 years after the composer dies, the copyright is in force.  This puts the vast vast majority of big band, jazz, and standard tunes well within this timeframe.

Whether or not you agree with the copyright laws is completely irrelevant.  And yes, to be honest, there’s little to no chance of getting caught.  What’s right isn’t always legal, and what’s legal isn’t always right. 

We have a great tool in the internet.  The instant access to virtually the entirety of mankind’s knowledge is at our fingertips.  Unfortunately, for an entire generation of people who grew up with the internet, they have the feeling that “accessibility” is the same as “free”.  For music, this means free downloads, free pdf’s of sheet music, free recordings, and on free videos on YouTube.  The idea of paying for music is foreign to them.

Technically, all of the following are illegal:

-making archival copies
-making backup copies
-scanning music into a tablet or other electronic device
-scans of something you've bought
-copying parts from another band’s book to replace a lost part

Practically, there is little chance of being “caught” and even less chance of being prosecuted.  Still, there is always that chance, and you cannot claim you did not know the risks.   Be willing to live with the consequences of your actions.

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Rich Woolworth
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« Reply #9 on: Aug 29, 2017, 06:53AM »

Anything that is copyrighted can LEGALLY only be bought or sold ONCE.  This doesn’t mean it doesn’t happen, and often it happens right out in the open (second-hand bookstores come to mind)…but ONLY the owner of copyrighted material has the exclusive rights to sell, reproduce, and distribute copies of their work. 

This is not true, at least in the US. Everything you wrote around it is trueish, but this is definitely not. Look up "First Sale Doctrine". Once you sell an original, your legal interest in that original is exhausted. Copying the original is illegal, but someone could use the original as toilet paper and then sell it as art for 100 million dollars, and you as the copyright holder would be entitled to exactly $0 from that sale.

It is legal to sell second hand originals of books, scores, and other copyrighted materials. They aren't illegal copies. The copyright holder is only entitled to "first sale", no matter how bad they wish that wasn't the case.
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« Reply #10 on: Aug 29, 2017, 07:15AM »

It is legal to sell second hand originals of books, scores, and other copyrighted materials. They aren't illegal copies. The copyright holder is only entitled to "first sale", no matter how bad they wish that wasn't the case.

Yes, you are correct.  I was thinking about digital copies and my thinking got away from me.  I need at least one more cup of coffee before I post first thing in the morning.

But tell me more about your "100 million dollar toilet paper" idea...I think you may be onto something!  ;-)
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Rich Woolworth
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« Reply #11 on: Aug 29, 2017, 07:26AM »

Sir, with your great music and my artistic wiping, we can together make a fortune! How does a 50/50 split sound? (Although, to be honest, more of me will be going into the artwork than of you)
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« Reply #12 on: Aug 29, 2017, 08:09AM »

Hell, I'd do a 99/1 split on the $100 million idea  Evil
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« Reply #13 on: Aug 29, 2017, 09:46AM »

there's a reason why a lot of music has a picture of a copy machine with an X over it. It's not legal to copy it.

Yes, although to be fair, I can think of numerous instances where I've seen that symbol or a notice forbidding copying or "all rights reserved" on music that was most definitely in the public domain.

Those markings have no legal power anyway -
a work is protected no matter whether it says so on the work or not (I.e my editions are protected even if I just write Cura et studio Maximilien Brisson, with no explicit copyright notice - ironically though, they are protected in the US but not in my home country because Canadian copyright law considers that a new edition of a Public Domain work does not cross the threshold of originality required for protection to apply).

Publishing companies will put these notices on everything even if it's just a reprint of a public domain work, because it confuses customers and makes them afraid to infringe a law. It has been argued that these markings constitue a form of corporate bullying.

It has also been argued that the "all rights reserved" mention is an abuse of copyright laws since ALL rights are never, ever reserved - there are exceptions and exemptions.
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« Reply #14 on: Aug 29, 2017, 09:56AM »

Well, the music itself might be in PD but that doesn't mean that a particular edition of something is. Which in and of itself is another can of worms...
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« Reply #15 on: Aug 29, 2017, 12:06PM »

Well, aside from Urtext editions, most editions of PD music are old enough to also be PD (Dover or Kalmus reprinting an old Breitkopf edition with their stamp added doesn't qualify as a new edition and is not protected under any copyright law, despite what they sometimes write)
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« Reply #16 on: Aug 29, 2017, 12:10PM »

Also depends where. In Canada, the music itself is copyrighted, not the physical  engraving; no new edition of a work already PD can qualify for copyright protection. The law establishes a "threshold of originality". An adaptation, arrangement, reorchestration qualifies, a new edition of an existing, PD work (even if it was never before edited or published) doesn't.

Which is how IMSLP gets away with having Barenreiter and Henle scores - they take out the protected parts (preface, critical commentary, etc), keep only the score and/or parts themselves and host them on their Canadian server.
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« Reply #17 on: Aug 29, 2017, 12:55PM »

Thanks IMSLP!

The big problem for me is when the PD originals are very difficult to obtain and you can't check to see if published editions of a piece are actually accurate against the originals (***ahem*** all the published editions of the 18th century trombone "concertos"), so music that should be free to use and distribute is not.

It's genius actually. "Check out this piece by Beethoven, that we are carefully guarding the original of. No it's not PD. No you can't use it without paying us. No, we won't tell you if or what or how we changed the inherent music to modernize it. It's faithful, but we put enough work in that you can't have it. No, you can't see the original without signing a legal document stating that you won't release it in any form"
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"My technique is as good as Initial D"
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« Reply #18 on: Aug 29, 2017, 02:23PM »

Thanks IMSLP!

The big problem for me is when the PD originals are very difficult to obtain and you can't check to see if published editions of a piece are actually accurate against the originals (***ahem*** all the published editions of the 18th century trombone "concertos"), so music that should be free to use and distribute is not.

It's genius actually. "Check out this piece by Beethoven, that we are carefully guarding the original of. No it's not PD. No you can't use it without paying us. No, we won't tell you if or what or how we changed the inherent music to modernize it. It's faithful, but we put enough work in that you can't have it. No, you can't see the original without signing a legal document stating that you won't release it in any form"

But what if five people, seemingly all unconnected, visited that original at different times... and then at some later date spy cam pictures of it emerged?

Each one of you could plausibly claim that someone else did it. And what are the chances of getting extradited over a PD trombone concerto?

Not that I'm suggesting such an operation take place, of course...
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« Reply #19 on: Aug 29, 2017, 03:37PM »

Oh, I am committed to getting the big 4 alto trombone concertos put up on IMSLP. If I had scans of the originals, it'd go straight up on there for the exact reason you state above. I believe that perhaps Howard W. and Will Kimball have copies of the originals, but that's just based on what I've read from them. It was Howard who gave me a wonderful run down of where all the pieces are located. He made it seem easy to get access to them, but it is not so easy, unfortunately.  I know there are scholars who have scans of these pieces. None of the scholars who have copies of the originals have put them up on IMSLP though.
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"My technique is as good as Initial D"
T-396A - Griego 1C
88HTCL - Griego 1C
36H - DE XT105, C+, D Alto Shank
3B/F Silversonic - Griego 1A ss
pBone (with Yellow bell for bright tone)
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