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[trombodie]

Can anybody recommend a website or book that gives good information about copyrights in music?  How to get them, what works are under copyright, all of the legal aspects of copyrights, how they apply to arrangements and compositions.

Thanks,
Bodie

[Woolworth]

This little book by Jay Althouse is clearly written, full of real-life examples that are very helpful even if you're not a music educator.  It served me well for many years.

http://www.a-cappella.com/catalog/the-teachers-lounge/teaching-resources/p_5806b.html

I think the copyright laws are often misunderstood and are broken with shocking frequency by musicians.

[BGuttman]

We had a big discussion about copyright here about a year ago.

I thought someone had agreed to write a little article on copyright for the regular OTJ (not the forum).

If you are a Union member, there is a copyright section on the AFM site.

And you can always go to the Patents and Trademarks portion of the U. S. Gummint Web Site.

As to what is under copyright, it seems that Disney keeps trying to extend the copyright protection to maintain Mickey Mouse, so I guess anything newer than 1928 will remain under copyright protection forever.  Right now, a copyright lasts life of the composer plus 70 years.

It's easy to get a copyright, but enforcement is on your nickel: if somebody steals your idea you have to hire the lawyer and you have to initiate the lawsuit.

Lots more.  Read up.  If you want to be a lawyer, it's a pretty good field.

[trombodie]

Thanks for the tips.  Could somebody please provide a link to the thread from a year ago on this topic.  I did a search, but to no avail.
Thanks,
Bodie

[JohnL]

The US Copyright Office website is a good place to start...
http://www.copyright.gov/

[Graham Martin]

Todd Jonz prepared a wonderful discourse on the subject of Copyright for the members of this forum. It answered all the questions that had ever been asked on the forum. It was submitted to the 'powers that be' but unfortunately it has never been published. Now might be a good time!

[RedHotMama]

Grah,

I've raised this question again in the Mods Corner.

[Joe Jackson]

Again, ideas like the copyright FAQ have been put off due to migration...

[Graham Martin]

For now, why don't we just post Todd's information as a topic in this room? At least it will then be available to the members!

I had thought about doing that myself, and I know Todd has, but I didn't want to 'rock the boat' if there was a better way of presenting the information.

[RedHotMama]

(This is the information accumulated on copyright by Todd and Grah. I hope I'm not doing anything wrong by posting it here and now.) RHM

Introduction

Copyright laws differ from one country to the next. There are many cases in which the copyright laws of one country are in direct conflict with the copyright laws of another country. Unless otherwise noted, the information in this document is based on the Copyright Law of the United States as set forth in Title 17 of the United States Code. Although many of the main concepts and principles discussed in this document may be the same or similar in other countries, readers outside the U.S. are encouraged to explore their own national copyright laws.

THE INFORMATION IN THIS DOCUMENT SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. Copyright law is a complex field, and interpreting it keeps entire law firms in business. The contents of this FAQ should be considered informational in nature. Anyone in need of legal advice concerning copyright law should consult an attorney. Do not depend on the information contained in this document to protect you or your musical works.

Terms and Definitions

1. What is a copyright?

A copyright is a collection of legal rights that protect a creative work expressed in a tangible form. A copyright grants exclusive rights to an author, editor, composer, playwright, publisher, or distributor to reproduce, distribute, perform, record, and broadcast an original literary, musical, or dramatic work as well as works derived from the original work. Copyrights protect a work itself, not the concepts, ideas, or themes contained in the work. As it applies to a musical work, a copyright protects the right to publish the sheet music for the work, perform the work in public, record the work in any format (such as on CD, magnetic tape, vinyl phonograph record, or a computer MIDI file), or broadcast the work via any medium (such as radio, television, or digital netcast.)

Copyright is a legal concept embraced by most nations of the world, but the specific terms of copyright law are established by each individual nation. While there are numerous international treaties, conventions, and agreements between nations regarding copyright law, not all nations are signators to these agreements, and as a result there is no such thing as international copyright law per se. There are many instances in which the copyright laws of one nation conflict with the copyright laws of another nation.

2. What is the public domain?

Works that are not protected by copyright are said to be in the public domain. A work may be in the public domain because the term of its copyright has expired, because its creator specifically dedicated it to the public domain, or because its creator failed to protect or enforce his or her copyright for the work.

3. What is a derivative work?

A derivative work is an artistic work that is based upon another artistic work. An example of a derivative works is a movie or teleplay based on a novel or stage play, or an annotated or otherwise edited edition of a written work. As applied to musical works, a derivative work is usually an arrangement of an original composition or a recording of an original composition or arrangement.

4. What is fair use?

Fair use refers to certain limited ways in which a protected work may be used without the explicit permission of the copyright holder that would otherwise be in violation of copyright law. The doctrine of fair use is set forth in Section 107 of the U.S. Copyright Act. Examples of fair use are the right to quote short passages of a literary work in a published review of that work, and the right to reproduce portions of a work for purely educational purposes under certain circumstances. Court decisions sometimes extended the doctrine of fair use, such as the so-called Betamax decision, which decreed that it was not a violation of copyright law for an individual to create a videotaped copy of a television broadcast for personal use, such as "time-shifted" viewing or archiving in a personal video library.

As it applies to musical works, the doctrine of fair use can probably be interpreted to permit such activities as the private performance of works protected by copyright (such as a rehearsal band playing commercial sheet music or an unauthorized arrangement) and recording a work protected by copyright for personal use (such as recording a work in your home for the purpose of improving your playing skills.)

The doctrine of fair use is quite complicated and its terms are fairly broad and open to interpretation. It is sometimes easy to interpret the doctrine of fair use to justify a particular use of a protected work when, in fact, that use would actually constitute a violation of copyright law. Except in very simple cases where copyright laws explicitly describe a particular use, it is generally a good idea to leave interpretation of fair use to intellectual property lawyers.

5. What does it mean to "publish" a musical work?

You publish a musical work when you fix the work in some medium (such as sheet music, an audio CD recording, or a computer MIDI file) and distribute copies of the work in that medium. Distribution of a musical work in this fashion is considered publishing regardless of whether or not you receive monetary compensation for the copies you distribute. Giving a single copy of the sheet music for a musical work to a friend without charge constitutes publishing it just as much as selling thousands of copies for a profit.

6. What does "out of print" mean?

A work is said to be out of print if the publisher is no longer producing new copies of the work. An out-of-print work may or may not be protected by a copyright. Out-of-print works that are protected by copyright are sometimes referred to as "orphaned" works.

7. What are authors' rights?

The original author of a work has the exclusive right to determine who may reproduce, distribute, perform, record, or broadcast the work. These rights may be (and frequently are) contractually assigned by the original author to another party either in whole or in part. For example, the composer of an original musical work will often assign the right to reproduce and distribute copies of the work to a publishing company, which in return pays the composer a fee for each copy of the work it sells. Similar arrangements are common with regard to the right to perform, record, or broadcast an original musical work.

8. What are graphic rights?

Graphic rights are the rights to reproduce and distribute an image. As they apply to musical works, graphic rights usually concern sheet music. It is important to differentiate between the rights to an image of a piece of music from the music itself. For example, an older musical work may be in the public domain, but a particular image of that work, such an edition of sheet music, may be protected by copyright.

9. What are performance rights?

Performance rights are the rights to perform a protected literary or musical work in public. Performance rights for musical works apply to the public performance of an original composition or arrangement in a concert, club, etc. and to the broadcast via radio, television, etc. of live or recorded versions of a composition or arrangement.

The administrative task of granting performance rights for a work can be very demanding, particularly for a popular work. It is not uncommon for the composer of an original composition or the arranger of an original arrangement to assign the performance rights for a work to a rights management organization. This organization is then responsible for processing requests to perform the work, authorizing performers to perform the work by granting them a performance license, and collecting royalties when the work is performed.

A rights management organization usually returns some portion of these royalties to the original composer or arranger and retains some portion of the royalties to cover the costs it incurs in the administration of the performance license. There are three organizations that manage performance rights for the vast majority of musical works: ASCAP (American Society of Composers, Authors, and Publishers); BMI (Broadcast Music, Inc.); and SESAC.

10. What are mechanical rights?

Mechanical rights are the rights to record a performance of a protected musical or dramatic work. The term "mechanical" refers the use of a mechanical device to embody a performance of the work in some medium, such as a CD, DVD, vinyl LP, videocassette, MIDI file, or even a piano roll.

As is the case with performance rights, the administrative task of granting mechanical rights for a work can be very demanding, and there are organizations that will handle this task on behalf of the original composer or arranger of a musical work. Whereas only three such organizations manage performance rights for the vast majority of musical works, there are a large number of organizations that manage mechanical rights. A fairly comprehensive listing of these organizations can be found on the MusicBizBuzz web site.

In the United States, one organization that manages mechanical rights for a large body of musical works is the Harry Fox Agency. One of the services offered by HFA is the processing of requests for mechanical licenses for a limited number (2,500 units or less) of recordings, which can easily be obtained online. The Songfile Database maintained by HFA can be very useful in determining if a composition or arrangement is protected by copyright.

11. What are royalties?

Royalties are monetary fees paid to the holder of a copyright in exchange for the right to use a protected work in a specific manner. Royalties for a musical work are most often paid in exchange for the right to publish, perform, or record that work. The monetary amount paid is usually determined by a contractual agreement between the party paying the royalty and the party receiving the payment.

Royalties associated with musical works generally fall into one of three categories. When the original composer or arranger of a musical work enters into an agreement with a publisher, he or she is usually paid a fixed amount or a percentage of the sale price of each copy of the work sold. Royalties for performance rights are often paid as a fixed amount based on the size of the performance venue, or as a percentage of the revenue generated by ticket sales. Royalties for mechanical (recording) rights are most often paid as a fixed amount per unit (such as CD, LP, DVD, etc.) sold.

Public Domain Works

12. How do I determine if a musical work is protected by copyright or in the public domain?

All works written before 1923 are in the public domain. If a work bears a copyright date earlier than 1923, it is in the public domain. The Public Domain Song List is a searchable database of 3,500 songs that are in the public domain under U.S. copyright law. A work that was once protected by copyright may also be in the public domain if its copyright was not renewed. Unfortunately there is no easy way to determine if this is the case.

13. There's a copyright notice on my copy of the Bach two-part inventions. Isn't Bach's music in the public domain?

A copyright on an edition of sheet music for a work written before 1923 applies only to the graphic rights to that particular edition of the work, which may not be reproduced or distributed without the permission of the publisher. The musical work itself, however, is not protected by the copyright.

14. If I want to arrange a work in the public domain, must I work from an original copy of the music that does not bear a copyright?

Basing your arrangement of a work in the public domain on either an original score or an edition of the work published before 1923 is the safest way to avoid violating any copyrights. Basing your arrangement on an edition of the work that bears a copyright date later than 1922 is also safe as long as that the musical content of that edition is identical to the original version of the work. In this case the copyright protects the graphic rights to the edition, not the work itself.

An arranger or editor might modify the original version of a work in the public domain. Basing your arrangement on such an edition of the work would be a violation of the copyright if your arrangement incorporated any of those changes. A credit for an arranger or editor might be considered an argument against using a particular edition of the work as the basis for your arrangement.
In order to win a lawsuit against you, the publisher of a protected edition of a work in the public domain would have to prove in court that you had used that edition as the basis for your arrangement. Depending on the degree of similarity between the content of the protected edition and the original work, proving such an assertion might be a difficult undertaking.
Purchased Sheet Music

15. Can I make photocopies of sheet music I have purchased?

Making a photocopy of sheet music protected by copyright without the permission of the publisher is a violation of copyright law.

16. Can I make photocopies of sheet music that is out of print?

Even though the publisher has chosen to discontinue publication of the work, its copyright remains in effect, and only the publisher has a legal right to reproduce and distribute the work.

17. Can I perform sheet music I have purchased?

If the work in question is protected by copyright, you may only perform the work in public if you have obtained a performance license from the holder of the copyright or his agent. The purchase of sheet music conveys no performance rights.

18. I purchased the sheet music for a string quartet. Can I rearrange it for a trombone quartet?

If the string quartet is protected by copyright, you may rearrange it for trombone quartet only with the permission of the copyright holder. Your trombone quartet arrangement would be considered a derivative work, and the holder of the copyright on the string quartet has the exclusive right to create a derivative work or to authorize someone else to create a derivative work.
Publishing Original Compositions

19. How do I copyright my original composition?

Copyright law protects an original composition the instant you express it in a tangible form such as sheet music or a recording. In order to alert others that your composition is protected by copyright, you should affix a copyright notice to your work that includes your name and the year in which you first created the sheet music or recording. The standard format of such a notice is, "Copyright © 2004 John Doe."

20. Must I include a copyright notice in my work?

Copyright law does not require you to affix a copyright notice to your work, but you should do so for your own protection. If a legal dispute over the ownership of the copyright on the work were ever to arise, the presence of a copyright notice will work in your favor. There have been cases in which works were considered by the court to be in the public domain because the authors of those works failed to protect them by affixing a copyright notice to the works.

21. How do I register my copyright?

You may register a copyright with the U.S. Copyright Office by completing a simple form and paying a fee of $30. The Copyright Office provides complete instructions for registering a musical work on its web site.

22. Must I register my copyright for it to be legal?

Your original composition is protected by copyright regardless of whether or not you choose to register it with the Copyright Office. If a legal dispute over the ownership of the copyright on the work were ever to arise and one party to the dispute had registered the copyright, the court would most likely consider that party to be the legal copyright holder. If both parties had registered the copyright, the court would most likely consider the party that holds the registration with the earliest date to be the legal copyright holder.

23. How long does a copyright remain in effect?

The copyright for works created after 1977 remains in effect for the life of the author plus 70 years. If there are multiple authors, the copyright remains in effect for 70 years after the death of the last surviving author. The copyright for anonymous and pseudonymous works and works made for hire created after 1977 remains in effect for the longer of 95 years from the year of first publication or 120 years from the year of creation. The copyright for works created but not published or registered before 1978 remains in effect for the life of the author plus 70 years. If the work was published before 2003 the copyright will not expire before 2048. For works created before 1978 that are still in their original or renewal term of copyright, the copyright is remains in effect for 95 year after the date that copyright was originally secured.

24. Am I in violation of copyright laws if my original composition contains the same or similar chord changes to another work protected by copyright?

Limited similarity to another work is probably not a violation. Generally speaking chords, rhythms, bass lines, etc. are not protected by copyright. There may be problems, however, if your composition is sufficiently similar to another work that an ordinary listener would find it difficult to distinguish between the two. For example, in the legal dispute over George Harrison's My Sweet Lord a court found that Harrison's song was sufficiently similar to the song He's So Fine that it was considered to be an unauthorized derivative work that violated the older song's copyright.

Publishing Arrangements

25. Can I copyright my arrangement?

You may copyright your arrangement of another composer's work if that work is in the public domain. If the work is protected by copyright you probably cannot obtain a copyright for your arrangement, as discussed further in the questions that follow.

26. Can I make my own arrangement of a work protected by copyright?

You may create your own arrangement of a work protected by copyright for your own private use, such as creating the arrangement as a personal educational exercise or playing the arrangement with your rehearsal band in a private setting. Any other use of your arrangement, such as publication or public performance, would require the permission of the copyright holder.

27. How do I get permission to publish my own arrangement of a work protected by copyright?
In most cases the publisher of the original work will either hold the copyright for the work or be able to direct you to the copyright holder. Send a letter requesting permission to publish your arrangement to the holder of the copyright of the original work. Mailing addresses for many music publishers can be found in the Publisher Directory maintained by the Music Publishers' Association. In response to your letter, the publisher may decide to let you publish your arrangement yourself, offer to publish it for you, or deny permission to publish it.

28. Why can't I get permission to publish my arrangement of a protected work from the holder of the copyright?

A publishing company usually holds the publication rights for a published musical work. Due to the large amount of administrative overhead involved in executing a contract, collecting royalties, and so forth, large music publishers frequently deny requests from individuals to publish their arrangements works for which the publishing company holds the copyright.
Many of the larger music publishing companies enter into exclusive agreements with one another to cross license the works for which they hold publishing rights. This means that one party to such an agreement may publish an arrangement of a work for which another party to the agreement holds the publishing rights. The exclusive nature of these agreements prohibits each of the companies from licensing any of the works for which it holds publishing rights to any company or individual that is not a party to the cross licensing agreement.

29. Can I publish my unauthorized arrangement as long as I don't charge for it?

You may only publish an arrangement of a work protected by copyright with the permission of the copyright holder regardless of whether you charge for the arrangement or give it away for free.

30. Can I give copies of my unauthorized arrangement to my friends?

Giving copies of your arrangement to your friends constitutes publication. See the question above regarding the publication of unauthorized arrangements.
Performance Rights

31. What performance rights do I have for sheet music I have purchased?

Purchasing sheet music conveys no performance rights.

32. Who pays the royalties for works protected by copyright when they are performed in public?

The venue at which a performance takes place is responsible for paying royalties for the works performed. Most clubs, bars, etc. in which music is performed pay an annual fee based on the size of the venue to one or more rights management organizations in exchange for performance rights to works handled by those organizations.

33. Can I perform a work protected by copyright in public without paying royalties if I don't charge admission to the performance and the performers are not paid?

Section 110(4)(A) of U.S. Copyright Law states in part, "the following are not infringements of copyright...performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if there is no direct or indirect admission charge..."

Recording (Mechanical) Rights

34. Can my band record and sell a CD of works protected by copyright?

Works protected by copyright may only be recorded if mechanical licenses have been obtained from the holders of the copyright on the works to be recorded or from the duly authorized agents of the copyright holders.

35. Can my community band record a CD of its concerts if copies are given only to members of the band free of charge?

Making a limited number of copies of the recording and giving them away for free to the performers does not obviate the need for a mechanical license as discussed in the question above.

36. How do I obtain rights to record a work protected by copyright?

You must first determine who handles the mechanical rights for the work. In some cases, the publisher also handles mechanical licensing for the work. In other cases the publisher should be able to tell you how to obtain mechanical rights. A good place to start is with the Harry Fox Agency, which handles mechanical licensing for a very large body of musical works. An online search of HFA's Songfile Database is an easy way to determine if HFA handles mechanical rights for the work in question. If HFA does handle mechanical rights for the work, and if you wish to produce fewer than 2,500 copies of the recording, you may apply for a license online at the HFA web site.
Copyright Violations

37. What are my chances of getting caught if I violate a copyright?

The chances that you will be caught violating a copyright depend to a great extent on the nature of the violation. Perhaps the most common copyright violation amongst musicians is the photocopying of commercial sheet music for backup purposes. Although this practice is a violation, it is highly unlikely that the publisher is liable to discover it.

Another common practice amongst musicians that violates copyright law is the sharing of unauthorized arrangements. If you were to share one of your unauthorized arrangements with a couple of friends, it is unlikely that you would be caught – unless, of course, those friends share your arrangement with others and it eventually falls into the hands of someone associated with the copyright holder. Perhaps the greatest danger under this scenario is that your arrangement might find its way onto someone's web site. This would greatly increase the number of people it might reach, significantly increasing the chances that the copyright holder might discover your copyright violation.

38. What would happen if I were caught violating a copyright?

This also depends to a great extent on the nature of the violation. If the copyright holder were to consider the violation to be relatively minor, you would most likely receive a "cease and desist" letter from the copyright holder's lawyers demanding that you cease distribution of the work that is in violation.
If the copyright holder believes that your violation had resulted in "permanent and irreparable harm" to his business, you might be sued for damages. For example, if you had published an unauthorized arrangement of a protected work, you should not be surprised if the copyright holder were to demand all of the revenue that you had realized from the sale of the arrangement.
It is also possible that the copyright holder could ask the court to award monetary damages in excess of the revenue you had realized from the sale of your arrangement. For example, lets assume that you had published your arrangement on a web site and offered it for download without charge, and that the availability of your unauthorized arrangement caused sales of the copyright holder's legitimate arrangement to decline. Even though you did not make a profit on your arrangement, the copyright holder could be awarded an amount equivalent to his estimate of lost revenue for the work based on past sales.

References

The references listed below were used in the preparation of this FAQ. If you wish to learn more about copyright law, these documents and web sites would be good places to start.
· U.S. Copyright Office
· Copyright Law of the United States [HTML]
· Copyright Law of the United States [PDF]
· Copyright Law FAQ
· Music Publishers' Association FAQ
· Public Domain Information Project
· Copyright Resources on the Internet
· U.S. Copyright Law: A Guide for Music Educators

[Todd Jonz]

My original draft of the document that RHM has posted above was written in HTML and contained some embedded links that have been lost.  For those of you interested in consulting the sources listed at the end of the document which I used for research, here they are with the links included:

U.S. Copyright Office

Copyright Law of the United States [HTML]

Copyright Law of the United States [PDF]

Copyright Law FAQ

Music Publishers' Association FAQ

Public Domain Information Project

Copyright Resources on the Internet

U.S. Copyright Law: A Guide for Music Educators

Also missing from the version posted above is a paragraph acknowledging all of the questions and answers from Forumites during that extended discussion last year.  Your contributions formed the basis of this FAQ, and without them I would never have undertaken to write it.  To a very large extent, this document was a collaboration by a fairly large group of Forumites, and I merely served as editor.

[Graham Martin]

On Ya Todd! But I think you are underselling the effort that I know you put into it.

[MikeMiller]

When it comes to fair use - if a piece of music has a page turn that is impossible to make without missing some notes on the next page, is it OK to make a copy of that page? Of course, any logical person would go ahead and make the copy, but I just wonder what the legal status of that action is.

[Phrontistes]

17. Can I perform sheet music I have purchased?

If the work in question is protected by copyright, you may only perform the work in public if you have obtained a performance license from the holder of the copyright or his agent. The purchase of sheet music conveys no performance rights.

Are they crazy? Or did I misread that?

You can not perform music you have bought in public without talking with the...what the hell? Well then...I guess nearly every musician that has performed in public must go to jail.

[Todd Jonz]

Christian writes:

> Are they crazy?

You wanna hear crazy?  The song Happy Birthday is still under copyright.  It's cool to sing it for your mom at home around the diningroom table, but doing so in a restaurant constitues a public performance and is technically a violation of copyright law.

[BGuttman]

When it comes to fair use - if a piece of music has a page turn that is impossible to make without missing some notes on the next page, is it OK to make a copy of that page? Of course, any logical person would go ahead and make the copy, but I just wonder what the legal status of that action is.

You are allowed to make one copy for personal use, but if you start selling the copies for all your friends, be prepared to take some time in the "slammer".

If you ask, you may be allowed to use the copy.  I remember buying a brass quintet arrangement of "West Side Story" from Musicians Publications and it came with extra trombone and tuba parts.  Jack Gale told me that they were included because of really lousy page turns and were intended to be used to cut and paste sections to make it playable.

[Phrontistes]

You are allowed to make one copy for personal use, but if you start selling the copies for all your friends, be prepared to take some time in the "slammer".

Yeah...right. If they catch you.

It'd be pretty stupid for someone to start selling the music, but some people make copies of music for friends to have.

[Todd Jonz]

Bruce writes:

> You are allowed to make one copy for personal use

I don't believe this ever came up during our extended copyright discussion last year, and it's news to me.  Upon reading your post above I searched Google and found lots of pages that contained the assertion that this is permitted under copyright law.  But try as I might, I haven't been able to find anything  suporting this in my copy of  the U.S. Copyright Law.  It's not mentioned in section 107, which addresses fair use, nor can I find the phrases "one copy" or "personal use" anywhere in the document.

Can you cite an authoritative source supporting this assertion?  If so, I'd like to update my personal copy of the FAQ posted above (for which I still hope to find a properly supported home on some site or other.)

[Woolworth]

Thought I'd dredge this up again.

I'm sure everyone will be thrilled to note that 6-10 March is Copyright Awareness Week. Sarcasm aside, the website associated with the "celebration" has a lot of good information, most of it in plain English instead of legalese.

http://www.csusa.org/caw/caw_2006_home.htm

[bhcordova]

The exception you are looking for is in the U.S. Supreme Court decision in Sony Corp of Amer. v. Universal City Studios

Please be aware that the internet is not considered a broadcast medium.  And that the copyrights associated with it are under the digital portion of the act which prohibits all unlicensed copying.

[Todd Jonz]

I just read a recent count decision concerning fair use that I thought perhaps some of my fellow armchair copyright lawyer wannabes might find interesting.  In Graham v. Dorling Kindersley Limited the defendant published a book containing images of posters promoting Grateful Dead concerts.  The owner of the rights to these poseters sued for copyright infringement and the defendant claimed fair use.  A district court decided in favor of the defendant, and in the decision linked above an appellate court upholds the lower court's decision.

Since I tend to be pretty conservative when interpreting copyright law, I would have considered the defendant's actions to have infringed on the plaintiff's rights.  I found it very interesting to follow the court's logic as it evaluated the defense's fair use argument using the four factors that determine fair use under U.S. copyright law: (1) the purpose and character of the use; (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.

[paj12]

Since I tend to be pretty conservative when interpreting copyright law, I would have considered the defendant's actions to have infringed on the plaintiff's rights.

I think the ruling had a lot to do with the fact that the posters were reproduced at a limited size. Fair use exceptions allow for quoting portions of a copyrighted work for the purposes of review or commentary. I forget what the case was but there was a ruling that, in the context of images, a reproduction at a reduced size or detail is  considered a "quotation." This is the reason that services like Google's image search exist. They only cache low resolution thumbnails of the images they link to. However, Google recently ran into trouble in the form of a lawsuit from a company that sells wallpaper for cell phones. Low resolution thumbnails is basically what they sell, so instead of Google's thumbnails being a "quotation" of the copyrighted work, they constituted the entirety of that work. Google lost the case, though they are in the process of appealing the ruling.

http://news.zdnet.co.uk/business/legal/0,39020651,39253737,00.htm

[Todd Jonz]

Of potential interest to my fellow armchair lawyers in the crowd:  MIT, in conjunction with the OpenCourseWare Consortium, has made available a free, online short course (originally offered during MIT's four-week Independent Activities Period) entitled Introduction to Copyright Law.  You can check out the syllabus and reading list before downloading the course materials, which include four two-hour video lectures.  I haven't explored these materials in any detail yet, but I fully intend to do so when I have the time to devote to them.

Kudos to MIT for making these materials available to the world at no cost under a Creative Commons license.  My alma mater stopped offering online courses when the commercial AllLearn consortium with which it was affiliated failed to turn a profit after five years of doing business and was dissolved.

[Paul Martin]

Todd,


Can an arranger also have a copyright in a derivative work?  If so, it suggests that there is an underlying copyright in a musical composition, which may or may not still be valid, as well as a copyright in an arrangement of that work, which may or may not still be valid, correct?

I'm asking because an estate is trying to sell 400+ arrangements of big band standards.  Assuming that these arrangements are themselves original (i.e., not merely transcriptions from recordings, or copies of someone else's arrangements), and that nobody has published them, then that suggests that the estate may have a copyright in the arrangements, notwithstanding that none of the arrangements indicate any sort of "copyright," and that so might the original composer.

Is this a correct view?


Regards,


Paul Martin

[Todd Jonz]

Paul asks:

> Can an arranger also have a copyright in a derivative work?

Yes, but the creator of a derivative work holds only those rights granted to him by the creator of the original work.

If I wish to publish my arrangement of a tune you composed, I must first obtain your permission to do so.  We would negotiate terms like who gets the revenue generated by my arrangement (in common practice I think you would get most, if not all, of it), what sub-licensing rights I have (probably none, other than the right of assignment over whatever other rights I manage to negotiate), performance rights, recording rights, etc.  And all of this would be documented in a formal legal agreement, the cost of which would probably cover two or three months of mortgage payments on our attorneys' condos in Vail.

> I'm asking because an estate is trying to sell
> 400+ arrangements of big band standards.

If the arrangements are known to be unauthorized (e.g. written for the local big band without the composer's permission), then the estate really has no rights to sell; all they have to sell is the charts themselves, and what a purchaser could legally do with them is questionable.  He certainly would have no right to publish them, and even playing them with the local big band might be a violation of copyright law, albeit a low-risk one (which is why local bands play their own unauthorized arrangements all the time.)

If the estate claims that they are authorized arrangements, I'd ask to see the documentation verifying that claim before I'd consider buying. Rights may only be conveyed in writing under copyright law; no docs, no sale.  If I did purchase the arrangements, I would only be buying those rights expressly conveyed to the arranger by the composer.

(And since it's been a while since this thread has been active, I'll remind everyone that I am not a lawyer and there's no reason anyone should assume I know what I'm talking about.)

[Joe Jackson]

Paul asks:

> Can an arranger also have a copyright in a derivative work?

Yes, but the creator of a derivative work holds only those rights granted to him by the creator of the original work.

If I wish to publish my arrangement of a tune you composed, I must first obtain your permission to do so. 

Yes, technically one has to get written permission before even writing an arrangement of a non-public-domain song that is written by someone else.  Verbal permission is not even enough.

Of course, in the commercial music world, understand that common practice is that nobody pays any attention to most of these rules.  People write arrangements and rarely, if ever, get permission to perform them on gigs or trade them with their friends.  And I have never heard of anyone getting in trouble for it, even when the performance is for large numbers of people or even when it is broadcast live on radio or television (for no pay).

Where most commercial musicians tend to start paying attention is when they want to record the music for sale or for broadcast, or when they want to sell the charts.  That's the time in the commercial world where licensing generally comes into play.

[Todd Jonz]

Joe writes:

> nobody pays any attention to most of these rules.  People write
> arrangements and rarely, if ever, get permission to perform them
> on gigs or trade them with their friends.

I think you've captured the essence of most of the contributions to this thread, Joe.  IMHO it all boils down to this:  should I live like a saint and ask, "Is this absolutely legal?" or should I live in the real world and ask, "What is my risk exposure if I make a minor violation?"  For the sake of argument I frame my posts here from the perspective of the saint, but if you read between the lines there's usually some commentary from an experienced sinner. 

It's one thing if Paul is considering buying these arrangements to play with his local big band, and another matter altogether if he is interested in publishing them.

[Dennis K.]

Righto - I've never heard of a cover band, party band, wedding band pay dues, ascap licensing, or anything along those lines.  Nor have I ever heard of one getting sued, even if it is technically a violation of copyright law.

I think most musicians realize that those types of performances actually increase their exposure, and ultimately revenue.
But... when someone claims something as their own for own with the intent of selling it, then the lawdogs come out to play.

[Piano man]

Righto - I've never heard of a cover band, party band, wedding band pay dues, ascap licensing, or anything along those lines.  Nor have I ever heard of one getting sued, even if it is technically a violation of copyright law.

But... when someone claims something as their own for own with the intent of selling it, then the lawdogs come out to play.

I always assumed my cover bands were covered by the venue's ASCAP license, and I make the reverse assumption as a club owner.  If not, what am I paying for?

Of course, that wouldn't cover a band playing a casual in a home or hall.

I think most musicians realize that those types of performances actually increase their exposure, and ultimately revenue.

That reminds me of an odd story.  I was playing in Pocatello, ID in the mid-eighties.  The band Heart had just released a sort of comeback album.  Our singer loved Heart so we did three or four songs off of it.  Lo and behold, Heart showed up at the gig!  They were playing at some sort of dome in Pocatello, and were staying at the motel we were playing at!  They came in after their show, and were very thrilled that cover bands were playing their tunes.   Selling albums is one thing, but when you're getting covered in bars, you've really made it.  They hung out with us for a while and were nice folks.

[Todd Jonz]

Piano man writes:

> I always assumed my cover bands were
> covered by the venue's ASCAP license

I've raised this question before but never really gotten an answer:  if the venue's license covers the original work, is it technically a violation to perform an unauthorized arrangement?  The only situation I can imagine in which this might be a problem for the copyright holder would be if I wrote a really bad arrangement that might poison the well and damage the sales of authorized arrangements. 

[Piano man]

Piano man writes:

> I always assumed my cover bands were
> covered by the venue's ASCAP license

I've raised this question before but never really gotten an answer:  if the venue's license covers the original work, is it technically a violation to perform an unauthorized arrangement?  The only situation I can imagine in which this might be a problem for the copyright holder would be if I wrote a really bad arrangement that might poison the well and damage the sales of authorized arrangements. 

That's brutal.  Using the 'poisoned well' theory, I've been in bands that deserved to be sued by every artist we covered.

[The Guardian]

I'm not sure if it's different up here in Canada or not, but when I rented a hall for my wedding last year, the licensing fee we had to pay explicitly stated it was for live and recorded music.

Out of curiosity I asked what if everything was original compositions that I owned the rights to (not that I could/would have done this of course) but I was told the hall wasn't prepared to police that so I had to pay the fee either way.

[Joe Jackson]

I always assumed my cover bands were covered by the venue's ASCAP license, and I make the reverse assumption as a club owner.  If not, what am I paying for?

I'm not really the expert, but I believe the question is whether there is a written chart or not.

If a band is covering a tune by ear, with no written parts, then the only licensing that applies are the performance rights that should be included in the ASCAP agreement obtained by the venue.

If there is a written chart with any standard notated parts then you are "fixing" an arrangement to paper and technically a transcription license must be obtained.  As I indicated in the popular music world this is a license which is pretty much unknown, in fact most publishers won't even know what you're talking about if you try to obtain permission to write an arrangement you intend to simply perform and not distribute.

From the "intellectual property saint" POV, even transcribing a Frank Rosolino solo needs permission from his estate, even if you never intend to distribute or sell the transcription.

Fortunately for us, military bands have in Title 10 an exemption to performance licensing - we can perform any music we want without fear of legal action by the owners of the compositions.  However the "right to arrange" license unfortunately is something that Air Force legal has gotten ahold of and is making things very difficult at the Air Force Band right now because legal is insisting we get permission before we arrange any non-public-domain music.

Intellectual property law in the United States is pretty much out of control, IMO...

[Dennis K.]

Intellectual property law in the United States is pretty much out of control, IMO...

Not if you happen to be the composer/original artist.

Cover bands like the ones that play in cheap hotel bars are one thing.  The Airmen of Note is in a sustantially different league.  You guys are what most people would consider "High Profile."  On any given day, you could find yourselves playing for a nationally televised audience with the President shaking hands and giving ya'll a warm round of applause.
Of course, the band does not make a dime, as your performances and recordings are free - or rather, publicly funded.  But, I can see where a composer that is not in the AoN would want to be compensated for their work.
Without a doubt, the AoN is great exposure for talent, artists and composers.  Well, most professionals in those categories do not produce or create for "exposure."  Should not the publicly funded taxpayer contribution that makes up your compensation also be extended to the creative talent?  If not, it seems that the creative services have been conscripted, in a way.
I suspect I am not aware of all the details, but that Title 10 exemption seems to commandeer intellectual property withou any compensation.
Could you fill in some details?

[Todd Jonz]

The Guardian writes:

> I'm not sure if it's different up here in Canada or not

Canadian copyright law may be taking a turn for the worse.  If pending legislation is passed, it may soon be illegal for you to rip a CD to an iPod or record a TV program.... 

[Piano man]

Intellectual property laws are absolutely out of control.

There used to be a balance between the public good and the rights of creators (which are also part of the public good.  If you don't protect creation, people will create less).

The balance has swung way against common sense.  Disney has commandeered copyright law to prevent Mickey Mouse from entering public domain, so little of value has entered public domain lately.  As was noted earlier, Happy Birthday is still copyrighted.  Banks can now place patents on the way they arrange their lines. 

There have always been things that could plainly be copied.  If I suddenly discovered I could make more money if my servers wore red velvet coats, I wouldn't expect to be able to copyright that idea, but I can't guarantee it wouldn't be accepted in the current climate. Before long, an Indy racer will be able to patent a driving technique or a stripper will patent a dance move.

The ultimate ********--tax preparers can patent tax advice!  Yes, indeed.  If you arrive at a sufficiently baroque interpretation of tax law, or a fiendishly deceptive tax-avoidance investment plan, you can patent it!  Never mind that the attorney is technically giving advice on how to obey the law, which we should all be privy to--once someone patents that advice, it ceases to be generally available.  Never mind that tax compliance is potentially a criminal matter--you can still patent the advice you give your clients.

The next step will be to patent criminal defense strategies.  If you can't pay the royalty for the first guy who thought one up, you go to prison.

If you think intellectual property laws are being abused, you're right.  We should go back to the limitations that were placed on them fifty years ago, and add in the adjustments that were made for new technologies. 

[Joe Jackson]

Intellectual property law in the United States is pretty much out of control, IMO...

Not if you happen to be the composer/original artist.

Well, yes I am a composer and it is still my opinion! 

Dennis, did you read my post?  The law states you cannot write an arrangement, even if it never sees the light of day, unless you get a license - a license you cannot get. 

I don't care if you are a composer, arranger or performer - I'm all three and THAT is ridiculous.

Cover bands like the ones that play in cheap hotel bars are one thing.  The Airmen of Note is in a sustantially different league. You guys are what most people would consider "High Profile." 

Whether a band is a known band or not is not relevent to whether they are required to obtain licensing to arrange or perform or record or broadcast non-public-domain songs.  The law requires everyone to comply.  Do you, Dennis?  Have you ever scribbled out the head of an ellington tune?

I know when I was about 14 I wrote a little four bone arrangement of "'A' Train" and stacked the tracks on my dad's reel to reel recorder.  According to the text of the law, I should have obtained a license before doing that.  Prima Facie insanity, and nothing any reputable musician has ever supported.  All a creation of media corporations and their legal teams and lobbyists.

This is the kind of garbage our well-meaning unions support.

Of course, the band does not make a dime, as your performances and recordings are free - or rather, publicly funded.  But, I can see where a composer that is not in the AoN would want to be compensated for their work.

Yes, many seem to want to squeeze the music for a few drops of money these days.  I think it's pathetic.

professionals in those categories do not produce or create for "exposure." 

I do not agree.  True musicians create music for pure expression, for communication, and what exposure does is raise the stakes on the level of expression an artist can attain.  The money is made by performing and receiving royalties when other artists perform your work live and on CDs and in broadcasts.

But getting a right just to arrange a song?  I have not encountered anyone in the music business that thinks this is somehow a good thing.

Should not the publicly funded taxpayer contribution that makes up your compensation also be extended to the creative talent?

It does.  We pay tens of thousands of dollars each year and untold man-hours researching and paying licensing for our recordings and broadcasts.  What I am talking about is right to arrange so I'm not sure where you're coming from.

If not, it seems that the creative services have been conscripted, in a way.
I suspect I am not aware of all the details, but that Title 10 exemption seems to commandeer intellectual property withou any compensation.
Could you fill in some details?

All I can really tell you that the Constitutional exemption that protects national symbols from litigation predates modern intellectual law, and trumps it.  I'm afraid if you want more information you need to either study law for about thirty years or cough up 30 or 40 grand to get a legal opinion.   

RTA only attacks the music.  It does not provide any money for composers.

People are losing sight of the big picture.  The body of composition out there is infinite.  If this continues it's going to get to the point where nobody can create anything without having a team of lawyers and researchers on hand to ensure it has not been done before.  The world would be a much better place if the money was out of the music business.  And yes that includes me.

[bickle]

I'd just like to point everybody to what I thought was an excellent book on the topic:

Free Culture, by Lawrence Lessig

I don't necessarily find myself agreeing with all his views, but definitely most of them. It's more of a manifesto than a catalog of dos and don'ts of copyright law, though. He lays out the changes in copyright law over the last several hundred (!) years in a very followable format, and makes very esoteric legal arguments in understandable terms. It's mostly dedicated to copyright law as it pertains to things like Napster and filesharing, but it still touches on some of the points we're discussing here, especially Joe's point that copyright law is all messed up. Especially the parts about needing a team of lawyers to write anything new: one of the overarching points is that the way copyright law is headed, it will stifle important new avenues of creativity.

[Dennis K.]

Thanks for filling in some blanks, Joe.

The law states you cannot write an arrangement, even if it never sees the light of day, unless you get a license - a license you cannot get.

Agreed - But, this is completely un-enforceable, unless the perpetrator is doing it on a large commercial scale, and the music is actually seeing the light of day.

The "license to arrange" is no big deal.  I don't know of very many people that arrange solely for their own enjoyment, or play only in their sound-proof room and braodcast it to themselves over a closed internent connection.  Most people want their stuff "out there."  There is an arrangement license, a print license, a mechanical license, a performance license - they all cover different aspects of commercial performance.  I don't think anyone cares if you arranged something when you were 14.  No judge would ever even hear that case.  If you were in one of the Boy Bands du jour and released it and sold 1,000,000 CD's, that would be different. 

We pay tens of thousands of dollars each year and untold man-hours researching and paying licensing for our recordings and broadcasts.

Good!  I must have misunderstood - I thought the Title 10 exemption released the AoN from this.
It makes sense for national symbols.  Are the AoN or the other DC Bands considered National Symbols?  I can see how that should protect the bands from getting sued for frivolous lawsuits or someone (like a band memeber) claiming a particular performance as their own intellectual property.  If you guys decided not to pay royalties and licensing fees, would a composer or publisher have any recourse?

The world would be a much better place if the money was out of the music business

I am in complete agreement here, Joe.  We both know that is a pipe dream.

The spirit of intellectual property law is pretty simple.  If someone is going to make money from my creativity and talent, I deserve to be compensated.  Likewise, I have an ethical obligation to not knowingly steal someone else's creativity. pretty simplistic, but it works until money changes hands.

I know it gets sticky.  I have a big piece for orchestra that will never see the light of day.  Thank you Hal Leonard.  Seems the money (that would be, the publishers) won't talk to you unless you are a "big name."  Too bad - I had about 20 church's ready to buy before it was even done.
Ran into something with a choral group I contract for - They did a world premiere of a big piece by a well known composer.  The publisher (a big one) wants to use the archive recording for publicity.  The musicians just got their per service rate.  Fortunately the conductor told the publisher "not unless you compensate the musicians."  The publisher said "we always use college groups for free."  Commercial use of a live performance... Oy Vay!  That' a whole nother thread...
Joe, awhile back, you started a thread - "The Anatomy of a Gig."  I would be very interested in hearing about how the  AoN handles all the licensing stuff.  If Wynton Marsallis were to guest-artist with the band, how would he be compensated?  What if the performance were recorded for archive or actual release? - I'm sure you have actually dealt with a lot more realities than my hypotheticals.  Just curious.

[Joe Jackson]

Thanks for filling in some blanks, Joe.Agreed - But, this is completely un-enforceable

Agreed.  My basic point though is that the laws themselves, read strictly, are out of balance - I suspect we are in agreement.

The "license to arrange" is no big deal.  I don't know of very many people that arrange solely for their own enjoyment, or play only in their sound-proof room and braodcast it to themselves over a closed internent connection. 

I know lots of people who write for their own enjoyment or for face-to-face performance in educational setting.  And practically everyone I knew in college transcribed solos.

I thought the Title 10 exemption released the AoN from this.

Military bands are exempt from needing to obtain performance rights for live performances (the rights paid by venues to ASCAP, etc. in the civilian world).

It makes sense for national symbols.  Are the AoN or the other DC Bands considered National Symbols?

Our live performances have come to be considered national symbols.  Back in the day military band performances were limited to GI-to-GI performances (read:ceremonies and battlefield buglers), as well as certain public performances: funerals, national funerals and parades.  But as the scope of military band performances broadened over the 20th century, case law and amendments to title 10 have evolved to include any live performance by a military band.

I can see how that should protect the bands from getting sued for frivolous lawsuits or someone (like a band memeber) claiming a particular performance as their own intellectual property.  If you guys decided not to pay royalties and licensing fees, would a composer or publisher have any recourse?

The exemption only applies to performance rights, not right to arrange, publishing, recording, or broadcast licenses.

Joe, awhile back, you started a thread - "The Anatomy of a Gig."  I would be very interested in hearing about how the  AoN handles all the licensing stuff.  If Wynton Marsallis were to guest-artist with the band, how would he be compensated?  What if the performance were recorded for archive or actual release?

Funny you mention it, the reason I am up on all of this is because we have recorded all of the Jazz Heritage Series (http://www.usafband.com/right_intro_jazz.cfm) this past season and we are currently producing the recordings as live broadcasts.

The artist gets paid whatever rate we negotiate with him or her.  This year the contract signed by the artists (Junior Mance, Slide and Phil Woods) includes an agreement for us to distribute the recording for broadcast and includes the particular scope of the distribution, etc.  Then we have to contact the holders of the copyright for each tune.  In many cases we are simply not able to contact the copyright holder - in this event we may or may not decide to proceed with the distribution in any case since we have made a good faith effort.  The fees charged by the copyright holders vary widely.

What does not vary is the response we get as it relates to the ownership of the copyrights for the music we record and broadcast.  If the copyright holder is a musician and the original composer, they are almost universally happy and enthusiastic for us to arrange and perform their music because they understand that we are musicians and we respect their work and that our use of their work represents further expression of their music for them.  The musicians rarely want money.

The large corporate publishing companies represent the other end of the spectrum.  They are not in the least interested in music and they certainly are not interested in musicians.  That's not bitterness, it's the facts.  The big publishing companies would rather poison their own well by having a poor and cheap arranger who will accept 5% or proceeds do arrangements of the jazz classics they own than have one of the best arrangers in America, Alan Baylock, breathe new life into it and make a contribution to the history of the song.

History is replete with examples of musicians who have, through coercion, sold their work to big publishers, and lose complete control of their work.  This commodisation of music is very bad for human culture and certainly is one (only one) cunterindication to the future viability of the whole concept of "intellectual property."

[Todd Jonz]

Joe writes:

> History is replete with examples of musicians who have,
> through coercion, sold their work to big publishers,
> and lose complete control of their work.

This describes so-called "orphaned" works, a case about which Lawrence Lessig is currently arguing before, I believe, a federal appellate court on its way to the Supremes.

Let's say I'm lucky enough to get a publisher to publish an original work of mine or my arrangement of a tune in the public domain.  In the agreement we write the publisher insists that I, as the owner of the copyright, grant him exclusive publication rights.  The work brings in some revenue for a while, but sales eventually slow to a trickle (especially if it's, say, a trombone quartet, for which there's a limited market in the first place.)  When the inventory of the first edition is exhausted, the publisher decides it would not be in his best financial interest to issue a second edition, and my work goes out of print.

My work has now been orphaned.  I'd like to see it in circulation, perhaps there are others who would like to get their hands on a copy, but I cannot legally produce or sell these copies myself.  The works of Tommy Pederson, a prolific composer of wonderful trombone ensemble music, fall into this category and have been discussed at some length in another thread.

I'm with Joe -- the system is broken alright....

[Dennis K.]

It seems that the system is broken primarily with the big publishers.  Hence the rise of self-publishing, like me.
Typical royalty contracts allow you to live slightly below the national poverty level if you have 1000 pieces in the catalog and they are all good sellers.
Anecdotally, that has more to do with the "mystique" of publishing than actual legislation.  Publishers say "we market, promote, and print it for you."  And they do, as long as you are one of the big names.
Then comes the 1000's of little guys who may be great arrangers, but have to sign away 90% of their creation in order for any publisher to even consider them.

[The Guardian]

I wish Copyright worked somewhat like how patents are supposed to work... if you don't use them, you lose them...

Modify it slightly for Copyrights so that if rights are sold and then not used they can revert back to the original owner... Also after the owner's death they are covered for xx years unless they are not used in which case they become public domain.

"Not Used" would have to be an appropriate amount of time whether than be 5 or 10 years or whatever.

[Todd Jonz]

Dennis writes:

> It seems that the system is broken primarily with the big publishers.

I think the system became seriously broken when Congress eliminated the requirement that copyrights be registered sometime back in the '70s.  Without a registry, it's virtually impossible to determine who holds what rights to many works.  That's where a lot of the problems in the system originate.

The Guardian writes:

> I wish Copyright worked somewhat like how patents are
> supposed to work...if you don't use them, you lose them

This has been proposed by the likes of Lessig and the good folks at Creative Commons.  The problem is convincing Congress to act, which they're not in a big hurry to do in light of the sums contributed to their campaign coffers by the entertainment cartel.  And with "Hollywood Howard" Berman as the new chair of the House intellectual property committee, I don't expect to see any radical changes to U.S. copyright law any time in the near future.

[Paul Martin]

I wish Copyright worked somewhat like how patents are supposed to work... if you don't use them, you lose them...

Modify it slightly for Copyrights so that if rights are sold and then not used they can revert back to the original owner... Also after the owner's death they are covered for xx years unless they are not used in which case they become public domain.

"Not Used" would have to be an appropriate amount of time whether than be 5 or 10 years or whatever.

It would seem that a much more limited number of years of use would make sense, I can't see much of a difference in terms of quality between an item that can be patented, versus one that can be copyrighted; the idea of a company sitting on a copyright, but which cannot be bothered to republish a work, is fairly distasteful, and makes one question the motivation, which can only be commercial.  My first "swag" at a reason is that, unlike items which can be patented, which have a certain innate usefulness that will become obsolete when someone builds "a better mousetrap," copyrighted material is much more a matter of culture, taste, and accident: Mahler's works, for instance, fell out of favor for a long, long time, to where, at one point, his works were rarely played; keeping a long-term right to a copyright permits the holders to "cash in" on the creator's renewed popularity year's later (these days, for the 6-month period after a venerated but (over time) less popular musician dies, and people swarm to the musician's recordings).

[BGuttman]

There was a difference between U.S. copyright law and International copyright law; at one time the U.S. copyright was for 28 years renewable for 28 years.  International copyright law was for life of the author plus 50 years.

U.S. copyright law has been changing based on the Walt Disney company's need to keep Mickey Mouse out of Public Domain.  Walt created Mickey in 1928, so the original copyright would have passed into public domain in 1986.  But we have adopted the International copyright so that Mickey, whose creator died in 1966, would remain private property until 2016.  Disney is trying to pull the strings to extend even that.

The result is that works that should become public domain do not.  There are a multitude of abandoned works that might have a small following but are not available because the original copyright owner does not want to be bothered to print them nor allow them to be printed by somebody else.

In Patent Law there is a fee for maintaining patent coverage.  If the fee is not paid, the teachings of the patent revert to Public Domain.  I'd like to see the same thing for copyright.  Let Disney keep paying for Mickey to be theirs.  Let Graceland pay to keep Elvis theirs.  And if nobody wants to pay to keep the arrangement of Clay Smith's "The Satellite" under coverage, it becomes PD and we can all use it.  FWIW, the patent maintenance fee is quite small; I think it's $4.00 per 4 year period.

[Todd Jonz]

Found this C|Net article kinda interesting:  'Electric Slide' on slippery DMCA slope.  Nutshell: a guy creates a dance move in the '70s called the Electric Slide (?) and it passes into pop culture; he registers a copyright on his "choreography" in 2004, feuds with The Ellen DeGeneres Show over an episode in which some celebrities perform the move, and sends a DMCA takedown notice to YouTube for all videos depicting the move.

Paying a royalty to perform, say, Jerome Robbins' original choreagraphy for West Side Story is one thing, but this is just plain silly.  More evidence of a broken copyright system.

[BGuttman]

Found this C|Net article kinda interesting:  'Electric Slide' on slippery DMCA slope.  Nutshell: a guy creates a dance move in the '70s called the Electric Slide (?) and it passes into pop culture; he registers a copyright on his "choreography" in 2004, feuds with The Ellen DeGeneres Show over an episode in which some celebrities perform the move, and sends a DMCA takedown notice to YouTube for all videos depicting the move.

Paying a royalty to perform, say, Jerome Robbins' original choreagraphy for West Side Story is one thing, but this is just plain silly.  More evidence of a broken copyright system.

Wait a minute.  He creates the "move" in the 1970's and applies for copyright in 2004?  I thought if you delay the registration process you lose the copyright!  You can't get a patent if you don't apply within some 5 years from the discovery!

Maybe Disney should think about it.  Make a minor modification to Mickey in 1940, and copyright it now so you have a new 70 years?

[Todd Jonz]

Bruce writes:

> I thought if you delay the registration process you lose the copyright!

Nope -- no registration required since the '70s.  Assuming a dance move can be copyrighted, he's held the copyright since creating the dance.  Registration merely makes his claim a matter of record, and is only really useful if you go to court.  You don't suppose that might have been what he had in mind when he registered, do you? 

[Dennis K.]

I hereby copyright my alternate positions on Bolero.  If you play them, you must pay me royalties.

[Joe Jackson]

I hereby copyright breathing.

Cease and desist, scum.

[Piano man]

Found this C|Net article kinda interesting:  'Electric Slide' on slippery DMCA slope.  Nutshell: a guy creates a dance move in the '70s called the Electric Slide (?) and it passes into pop culture; he registers a copyright on his "choreography" in 2004, feuds with The Ellen DeGeneres Show over an episode in which some celebrities perform the move, and sends a DMCA takedown notice to YouTube for all videos depicting the move.

So my idea to copyright 'bad wedding reception dancing' isn't as stupid is Mrs. PM thinks.

[Dennis K.]

So my idea to copyright 'bad wedding reception dancing' isn't as stupid is Mrs. PM thinks.

Could you copyright the choreography to The Chicken Dance?

[marty nichols]

I briefly entertained the idea of buying iPod Shuffles,
or another quality player, loading selected music from my
library on them and selling on line.

From what I am learning, it's a "no-no"?

 

[BGuttman]

I briefly entertained the idea of buying iPod Shuffles,
or another quality player, loading selected music from my
library on them and selling on line.

From what I am learning, it's a "no-no"?

 

If you wrote the song, or if the song is old enough to be "public domain", you should be OK.

If the songs are copyright protected, you really shouldn't be selling them without permission from the copyright owner.

[Dennis K.]

Got this really nifty flowchart off a tubenet post:

http://www.bromsun.com/practices/copyright-portfolio-development/flowchart.htm

answers a lot of copyright questions.

[RMVerdi]

Hello,

Some very useful info here.

I'm in the process of making a limited run--under 2500 copies--solo CD.

I scanned the Harry Fox site, and found some popular, often performed works, for instance the Casterede and Creston, are there, but many lesser perfomed works, the bulk of my recording, are not.  I'm unclear, and I can't make sense of it from the Harry Fox site, if a work is not in their database, will they seek it out and make it part of their database if I make it known I wish to pay for its mechanical rights?

Or, does this mean I have to contact the publisher, or even the composer to obtain the mecahnical rights to the works?  Several of my choices are LeDuc publications--what are the odds of my hearing back from them if I submit a request? 

This seems like quite a labyrinth to roam through!


Any help would be appreciated...

Roger Verdi

[Todd Jonz]

Roger writes:

> Harry Fox...if a work is not in their database, will they seek
> it out and make it part of their database if I make it known I
> wish to pay for its mechanical rights?

Probably not.  As best I can tell, the Harry Fox Agency is merely a paper pusher and collection agent for the publishers with which it has contracts.  If HFA represents the publisher of a work in which you're interested, I would expect it to be in the Songfile database.

> Several of my choices are LeDuc publications

Can you find any other LeDuc titles in Songfile?  If so, then an inquiry to HFA would probably be in order.  Otherwise you'll probably have to deal with LeDuc directly.

> what are the odds of my hearing back from
> them if I submit a request?

Great question.  Let us know the answer if you get this far. 

> This seems like quite a labyrinth to roam through!

It's nuts, isn't it?  Wouldn't the world be a much simpler place if there were a formal registry like there used to be?

A friend's Dixieland band pressed 5,000 CDs to sell at gigs.  It took them almost six months (which they hadn't planned on) to clear the rights to a lot of musty old standards from the '20s and '30s.  That must have been a lot of fun.


 

[RMVerdi]

Thanks for the reply,

I looked through the HF site again, and they do have several LeDuc works in their database, just not the ones I want to record!  The composers and publishers of my other choices are there too....so, I have an email in the them, HF, regarding my options with them.

Thanks again,

Roger

[Todd Jonz]

> I have an email in [to] them, HF, regarding my options with them.

I hope you'll let us know what you hear back from them, Roger.  I've always wondered about this myself, and I'm sure others have as well.

[Todd Jonz]

The Bush administration is shopping a bill around Congress called the Intellectual Property Protection Act of 2007 which, according to a C-Net article, would:

• Criminalize "attempts" to infringe copyright (whatever that might mean);
• Permit life imprisonment for using pirated software;
• Permit wiretaps on anyone "attempting" to infringe copyrights;
• Allow a computer to be seized if it is "intended to be used in any manner" to commit a copyright crime;
• Impose penalties for actions that were "intended to consist of" unautorized distribution of copyrighted materials.

Intentions?  Sounds a lot like Minority Report to me.

[BGuttman]

Seems a bit drastic to me.  You can get life imprisonment if you use a copy of some software for personal (or perhaps training) use once?

You can get life in prison because you took that copy of Windows 2000 from the old computer and put it on the new one?

Have the "copyright police" scanning all computers for pirate software and impounding them?  Got a big storage area?

Wiretaps to check for copyright infringements?  I think you will be wiretapping the entire country!

Gonna put every kid who rips a track from YouTube in the slammer?

Hope he has money to build a lot of prisons; he's going to have half the country locked up!

[Joe Jackson]

It would be great if this got passed. 

I mean, if a future president ever commits us to unwinnable wars with no compelling national security interest, bankrupts the country, rolls over at every opportunity for big business and throws the Constitution under the bus, he'll get thrown in jail for illegally using copyrighted material belonging to George W. Bush.

Sorry, off topic, inappropriate. 

*moderates self*

[Labdiscoduck]

The Bush administration is shopping a bill around Congress called the Intellectual Property Protection Act of 2007 which, according to a C-Net article, would:

• Criminalize "attempts" to infringe copyright (whatever that might mean);
• Permit life imprisonment for using pirated software;
• Permit wiretaps on anyone "attempting" to infringe copyrights;
• Allow a computer to be seized if it is "intended to be used in any manner" to commit a copyright crime;
• Impose penalties for actions that were "intended to consist of" unauthorized distribution of copyrighted materials.

Intentions?  Sounds a lot like Minority Report to me.

Just read the article.  Pretty scary stuff.  It's like 1984- twenty three years too late.  Doesn't the government have enough to worry about without trying to enforce this proposed law?  Life imprisonment for pirated software?  Holy Crap.     

[Dennis K.]

Crap.  I just listened to "JJ's Broadway" and was thinking some of those would be a cool arrangement.  Since I did some roadmaps in my head, is that an attempt at copyright infringement?
Crap. 
I would use my computer to genetrate the parts.  Gone.
I listened to it in my truck.  Gone.
My daughter was in the car.  Did I endanger her by exposing her to my dark criminal activity?
Sheeesh.  Minority Report is right.

[bickle]

I've had an interesting question come up elsewhere.

Is an unauthorized derivative work covered by copyright?

For example, suppose somebody makes a really hot, but unauthorized, arrangement of a song, and puts it up on a website. The owner of the copyright finds it, decides it's actually pretty good, and publishes it. Could the person whose (unauthorized) arrangement was effectively stolen after they stole the song in the first place sue? As I understand things, the arrangement is a separate issue that could be copyrighted just as the original composition was, which would mean it's covered by copyright as soon as it's created and fixed and all that. If the arrangement was unauthorized, then complaining that somebody stole it would be tantamount to a (potentially very expensive) admission of guilt. But would the fact that it was unauthorized do anything to change legal standing? Is this addressed anywhere?

I've found a few cases of fan fiction where a fic writer threatened to sue an original creator, usually for cribbing a plot that the fic author came up with using the creator's characters, but I haven't managed to find anything that actually went to court. As far as I know, this is essentially an academic question that might not have an answer. I just know there are some folks on here who have dug more deeply than I have.

[BGuttman]

The way I understand it, Bick:

1.  The original copyright applies to the original work.  Any derivative offered for sale must be approved by the copyright owner.

2.  Any derivative work will retain any rights not reserved for the original copyright holder.  i.e. if an unauthorized arrangement of a tune is created, the arranger may not sell it because he does not have permission from the original copyright owner, but the original owner cannot steal it either because the existence of the derivative work is because of efforts of the copyright violator.

In cases like this there can be cross-licensing agreements to allow the arrangement to be sold with royalties going to both the originator of the work and the creator of the derivative work.

Of course if one side decides to be intransigent...

[Todd Jonz]

Great hypothetical, bick.

> As I understand things, the arrangement is a separate issue
> that could be copyrighted just as the original composition
> was...would the fact that it was unauthorized do anything
> to change legal standing?  Is this addressed anywhere?

Here are the pertinent sections of U.S. copyright law that I think would apply to this situation:

§101 Definitions

...A “derivative work” is a work based upon one or more preexisting works, such as a...musical arrangement...

§106 Exclusive rights in copyrighted works
 
The owner of copyright under this title has the exclusive rights...to prepare derivative works based upon the copyrighted work...

Since it makes the language of what I'm about to write a lot simpler, let's assume for the moment that it's the composer who holds the copyright on the original work.

As I read the two sections above, the arranger holds no legal rights to his unauthorized arrangement, having violated the exclusive right of the composer to create derivative works.  It doesn't sound to me as if the arranger would have any legal recourse if the composer were to usurp the unauthorized arrangement and do with it as he pleases -- or, at least, the arranger could not look to copyright law for protection.

[oldskoolmark]

Seems like these would be in violation every time they did a song without explicit permission from the owner, which is 99.9999% of the time. No?

[BGuttman]

There are two issues with copyright infringement.

Sure, every time I play a song without paying a performance royalty I am breaking the law.

The royalty is usually under a dollar for each performance.  Is it worth it to hire a lawyer at $500 an hour (20 hour minimum) to try to get the 80 cents in royalty?  No.  But if I cut a record and start selling ten thousand copies it now becomes more reasonable to try to recoup the payments.

If I put the recording on YouTube and allow everybody and his dog to download it, the copyright owner is now losing big $$$.

Get the picture?

[Todd Jonz]

Another good question, Mark.

My comments on bick's hypothetical were about the arrangement with regard to publication rights.  In this case I think the composer holds all the cards.  Performance is another matter.  The venue is responsible for paying royalties, not the band, so a cover band is protected.  The same would apply to a recording, in which case the record company would be responsible.

Now, is it kosher for a cover band to perform or record and unauthorized arrangement?  Beats me!  I've asked this before but nobody has ever offered an answer.  I would guess that as long as the composer is getting his royalties he'd be happy.

Dose of reality:  Are unauthorized arrangements performed frequently?  Sure they are.  Are they legal?  Perhaps not.  Is my local band liable to get sued?  Highly unlikely.  While we've spent a lot of time in this thread discussing ethics and legality, it would appear that, in practice, they often have very little to do with reality.

(UPDATE:  You beat me to the <Enter> key, Bruce!)

[Piano man]

My best guess is that performing an unauthorized arrangement in an ASCAP and BMI licensed venue is completely legal. If not, where would you draw the line?

1) A written out arrangement for 18-piece band?
2) A reharmonization of a standard, scribbled down on a cocktail napkin?
3) Redoing a rock song as reggae, with no written arrangement?
4) Playing a song much faster or slower than the original?

At some point, a really bad copy band could be sued for unintentionally playing an unauthorized arrangement.

I think you can play a song any old way you want in a license-paying establishment, whether the arrangement is written down, partly written down, or unwritten.

Selling the arrangement would be another story.

[dwdraw]

Having recently done a lot of reading on copyright law, here is what I understand about performing arrangements:

* Unauthorized performances and arrangements are unauthorized, and need authorization to become legal.
* Legal arrangements are arrangements with permission from the copyright holder.
* Performances of unauthorized arrangements are legal 1) when in an educational setting (such as a school band, but not a pro group who travels to a school for pay), 2) when the performance of the original is authorized, and 3) when the arrangement a) keeps the character of the piece the same, b) changes no melodic material, and c) changes are only to fit the piece to the ensemble (such as substituting an instrument or having more players on a part than originally intended).

Piano man,

According to law, all 4 are illegal. (No. 4 falls under "substantially changes" the character of the work, and no. 2 is an arrangement only legal if the original is out of copyright.)
Performed arrangements are not legal by law, but may be permitted by the terms of your specific licensing agreement. For example,
http://www.ascap.com/licensing/about.html
Of course, it says "ASCAP does not license the right to print copies of musical works, nor does it license rights to make adaptations or arrangements." But, that is unclear whether it talks about printing, or printing and performing.

Hopefully someone will know more about the specifics of the ASCAP and BMI licensing terms. (A quick search didn't turn up any legalese contracts, but gave many general FAQs and brochures.) They would have to grant additional rights to allow for performing arrangements.

http://www.menc.org/information/copyright/copyr.html
http://publishing.wsu.edu/copyright/music_copyright/
http://www.copyright.gov/help/faq/

[Piano man]

Thanks for the info.

I assume that when I pay BMI and ASCAP fees for my clubs, I'm covering in advance the rights of my paid performers to play songs licensed under those organizations. Otherwise, what would I be paying for? And it's not cheap.

I think arranging a song for an eighteen-piece band would be legal, because it fits all the criteria. There's no substantive difference between writing out the parts and singing them to each player and learning them by ear.

It looks like you can copyright a song and benefit from its licensed performance, then retain the right to prosecute those whose versions you don't care for.

Presumably, if I throw a couple bars from "If I Only Had a Brain" as a quote into an improvised solo during "Autumn Leaves" in a licensed club, I'd be violating two copyrights at once.

For that matter, a strict reading of the law as quoted would seem to make improvising over a copyrighted standard a violation in and of itself.

I won't argue with your interpretation of the law--you've done more homework on this than I have--but it looks like this one is so poorly written that it would be difficult to work without unintentionally violating it.

[dwdraw]

I haven't looked into how copyright affects jazz and other works containing improvisation. I found something quickly that is limited in its exploration, so, if you find anything else, I'd love to read more.

Here's something I found about improv:
http://www.iaje.org/article.asp?ArticleID=145

This shows how extreme the law can get when leaning more on the theory of law than what's done in practice:

This is complicated further in the U.S. by the doctrine of derivative works, in which a section of the American copyright law (unlike Canada's) reserves to the owner of copyright in a musical work the sole and exclusive right to make new works based on that work. This right does not exist in Canada, but it clearly does exist in the U.S. So technically, it is an infringement of United States law for any musician to improvise a solo over a protected musical work other than with the permission of the composer or the publisher. In Canada, however, even if the result is an infringing solo on the musical work on which it is based, it creates a situation of "blocking copyrights." The soloist isn't authorized to play the original solo, but the composer also isn't authorized to play the original solo (because the composer didn't compose it).

[Todd Jonz]

Dwdraw writes:

> This shows how extreme the law can get when leaning more
> on the theory of law than what's done in practice...

And that's the real lesson to be learned from all of the posts in this thread.  Copyright law serves as a general guideline for those willing to make an effort to do the right thing, and to provide a framework within which a decision will be made in a court of law when two parties are unable to resolve their differences between themselves.

It's like highway speed limits.  Most of us agree that they're a good idea, but how many of us don't knowingly violate them from time to time?  Who hasn't performed an unauthorized arrangement in public, or made photocopies of charts to pass out to the band after putting the originals in the files for safe keeping?  My personal jihad is against permanently out-of-print works, which I freely copy and share without any reservation whatsoever despite the fact that it's a clear violation of copyright law.

If we can't improvise a solo, keep important works alive when they go out of print, or sing "Happy Birthday" in a restaurant that has no ASCAP/BMI license, then I assert that it is copyright law that needs to change, not the behavior a well-intentioned citizenry.

[MoominDave]

 If so, I'd like to update my personal copy of the FAQ posted above (for which I still hope to find a properly supported home on some site or other.)

Todd,

There is a primarily UK-based brass band forum at www.themouthpiece.com. They maintain a factsheet on UK copyright law (a collaborative effort, authored by Philip Sparke, among others). I think that your text on US law would be a valuable related addition to their "articles" section, possibly subject to some further collaborative effort over there. There would be no problems in adding it, as there seem to be here (unless it's gone up somewhere where I haven't been looking in the meantime).

The tMP UK copyright factsheet: http://www.themouthpiece.com/vb/showthread.php?t=19730
tMP forum owner: John Burns - john@themouthpiece.com

If you're still looking for somewhere to host, I'd suggest that you contact John, saying that I suggested that you do so. For reference, my username is the same there as here.

[I'll send you a PM saying this too]

[Todd Jonz]

Thinking about building a reproduction of the Egyptian pyramids?  Then don't be surprised if you get a bill for royalties from the Egyptian government, which is on the verge of enacting legislation that puts them under copyright protection.

When I read the headline "Egypt to copyright pyramids" I had to check my calendar to make sure it wasn't April Fools Day.  I've read about a lot of copyright abuse, but this one really takes the cake!

[Todd Jonz]

I found a handy little Flash application on the net, a sort of Copyright Slide Rule, that can be quite helpful in determining if a work first published in the U.S. is still protected under U.S. copyright law based on its date of publication.

It won't give you a definitive answer in most cases, but it provides some useful guidelines (it also serves to illustrate just how convoluted U.S. copyright law has become.)  It does, however, define three categories of public domain works for which the conditions are relatively easy to verify:

(1) the work was published before 1923;

(2) the work was published between 1923 and 1977 without a copyright (©) notice;

(3) the creator of the work died more than 70 years ago.

The only definitive guideline of which I was previously aware was the first one; the last two are new to me (you learn something every day!)  I found the second one particularly interesting; it would appear to suggest that it's cool to digitize and share old recordings that don't display a copyright notice.  Start checking those old 78s!

[Todd Jonz]

I have just discovered a wonderful web site called Public Domain Sherpa that was created by an honest-to-gosh attorney, not another well-intentioned armchair lawyer (like most of us who have debated these issues here in the Forum) or an RIAA flack who wants to spin reality to the advantage of the Entertainment Cartel.  I found several essays on this site that I thought would be of general interest to Forum members:

• Making sure it’s public domain sheet music
• Avoiding problems with public domain music
• False copyright claims are more common than you think.
• Finding and using free sheet music

Reading these essays has caused me to question some of the information I included in the Copyright FAQ I wrote a few years ago in an attempt to compile the collective "wisdom" found in previous Forum posts.  For example:

In the US, reprint editions of public domain music, no matter how beautifully typeset (and no matter how much effort went into the edition), are simply not copyrightable.

This negates the assertion in sections 8 and 13 of the FAQ that the engraving of Drei Equale that I created using Sibelius is protected by copyright law.  Changes to a work in the public domain must be "creative" in order to be protected by copyright, and regardless of how artistic I might think my new engraving is, from the perspective of copyright law my changes are "mechanical" and my engraving is a "reprint" that isn't protected.

By extension, I would guess that even my Sibelius file probably isn't protected either since it, too, is just another "mechanical" reproduction of Ludwig's notes.  But what about a MIDI file I generate using Sibelius?  Is it also mechanical reproduction or is it a "phonorecording", which is protected?

The more I read about copyright, the more confused I become.

[BGuttman]

...

The more I read about copyright, the more confused I become.

This is what keeps Intellectual Property Lawyers in business.

[sly fox]

have fun reading

or you could pay an attorney specializing in copyright law, I guess.


http://www.washingtonpost.com/opinions/bill-would-help-combat-copyright-offenders-on-the-internet/2011/08/23/gIQA3SYdbJ_story.html

Editorial Board Opinion

Bill would help combat copyright offenders on the Internet

The Protect IP (Intellectual Property) Act, introduced by Sen. Patrick J. Leahy (D-Vt.) and a bipartisan group of lawmakers, would give the government and copyright- and trademark-holders a means to combat this problem. Rep. Lamar Smith (R-Tex.) is expected to introduce a House version once Congress returns next month.

The proposal would allow the Justice Department or a private rights holder to move against a rogue foreign Web site by convincing a federal judge that the site is “dedicated to” and has “no significant use” other than copyright or trademark infringement. Defendant Web sites would have the right to contest the allegation. An otherwise legitimate site that may have sold a product that turned out to be a fake or unknowingly linked to or posted an item to which it did not have the rights would be spared legal action. . . .

Some U.S. Internet businesses and open Internet advocates worry that the Protect IP Act could choke off legitimate speech by authorizing the demise of entire Web sites, rather than specific content. They point to the effectiveness of the Digital Millennium Copyright Act (DMCA), which requires Web site owners to take down individual pieces of pirated content after a copyright holder complains. But what if the Web site is a consistent scofflaw? . . .

here is the text of the proposed bill:

http://leahy.senate.gov/imo/media/doc/BillText-PROTECTIPAct.pdf


 Digital Millennium Copyright Act (DMCA)
http://www.copyright.gov/legislation/hr2281.pdf

[sly fox]

update on efforts to redo the proposed law

looks like a start over

http://www.nytimes.com/2012/01/15/us/white-house-says-it-opposes-parts-of-2-antipiracy-bills.html?ref=us

The Obama administration said Saturday that it strongly opposed central elements of two Congressional efforts to enforce copyrights on the Internet, all but killing the current versions of legislation that has divided both political parties and pitted Hollywood against Silicon Valley. 

The comments by the administration’s chief technology officials, posted on a White House blog Saturday,

http://www.whitehouse.gov/blog/2012/01/14/obama-administration-responds-we-people-petitions-sopa-and-online-piracy

The White House has responded to two petitions about legislative approaches to combat online piracy. In their response, Victoria Espinel, Intellectual Property Enforcement Coordinator at Office of Management and Budget, Aneesh Chopra, U.S. Chief Technology Officer, and Howard Schmidt, Special Assistant to the President and Cybersecurity Coordinator for National Security Staff stress that the important task of protecting intellectual property online must not threaten an open and innovative internet. . . .

more from the NY Times:

came as growing opposition to the legislation had already led sponsors of the bills to reconsider a measure that would force Internet service providers to block access to Web sites that offer or link to copyrighted material.

“Let us be clear,” the White House statement said, “online piracy is a real problem that harms the American economy, threatens jobs for significant numbers of middle class workers and hurts some of our nation’s most creative and innovative companies and entrepreneurs.”

However, it added, “We will not support legislation that reduces freedom of expression, increases cybersecurity risk or undermines the dynamic, innovative global Internet.”

The bills currently under consideration in Congress were intended to combat the theft of copyrighted materials by preventing American search engines like Google and Yahoo from directing users to sites that allow for the distribution of stolen materials. They would cut off payment processors like PayPal that handle transactions.

The bills would also allow private citizens and companies to sue to stop what they believed to be theft of protected content. Those and other provisions set off fierce opposition among Internet companies, technology investors and free speech advocates, who said the bills would stifle online innovation, violate the First Amendment and even compromise national security by undermining the integrity of the Internet’s naming system.

Though the Obama administration called for legislation this year that would give prosecutors and owners of intellectual property new abilities to deter overseas piracy, it also embraced the idea of “voluntary measures and best practices” to reduce piracy. . . .

[BGuttman]

The problem with online copyrights is that we have a problem and the folks trying to "fix" the problem are going after the wrong people.  It sorta reminds me of the approach to election fraud: we have problems with election fraud so we attack one small (possibly insignificant) part of it: certifying voters.

The 600 pound gorilla in the room are the counterfeiters.  These guys have no compunction of making thousands of copies of digital media and selling it at a lower price; the profits go entirely to the counterfeiters, most of whom are not in the US and hence out of reach of law enforcement.

There is a 400 pound gorilla as well.  It is the file share sites.  These are now also not in the US and hence beyond the reach of the law.

So now we have the people who are being aggrieved going after the one thing they can.  We have some copyrighted material being put on YouTube, Wikipedia, and other such sites.  And these people are not happy to just have the material removed; they want to take down the sites entirely.  This is misguided.  YouTube has removed copyrighted material when requested.  This should be sufficient.  Same goes for other ethical sites.  This is what upsets the "Free Internet" folks.

I don't know the solution to the counterfeits.  We have a similar problem in Electronics, but with more serious consequences: many counterfeit parts don't work as well as the real ones (if they work at all) and this can be a serious problem with things like medical equipment and armaments.  As long as there are amoral people there will be counterfeits.  There probably should be an international agreement that is enforced (the Chinese have anti-counterfeit laws but the stuff coming out of there indicates that they don't enforce them).

[sly fox]

http://money.cnn.com/2012/01/17/technology/sopa_explained/index.htm?iid=Lead

SOPA explained: What it is and why it matters

 . . . What is SOPA? SOPA is an acronym for the Stop Online Piracy Act. It's a proposed bill that aims to crack down on copyright infringement by restricting access to sites that host pirated content.

SOPA's main targets are "rogue" overseas sites like torrent hub The Pirate Bay, which are a trove for illegal downloads of movies and other digital content.

Content creators have battled against piracy for years -- remember Napster? -- but it's hard for U.S. companies to take action against foreign sites. So SOPA's goal is to cut off pirate sites' oxygen by requiring U.S. search engines, advertising networks and other providers to withhold their services.

That means sites like Google wouldn't show flagged sites in their search results, and payment processors like eBay's (EBAY, Fortune 500) PayPal couldn't transmit funds to them.

Both sides say they agree that protecting content is a worthy goal. But opponents say that the way SOPA is written effectively promotes censorship and is rife with the potential for unintended consequences.

Silicon Valley woke up and took notice of the implications when SOPA was introduced in the House of Representatives in October. But its very similar counterpart, PIPA, flew under the radar and was approved by a Senate committee in May. PIPA is now pending before the full Senate and scheduled for a vote on January 24, though some senators are pushing for a delay.

Isn't copyright infringement already illegal? Yes. The 1998 Digital Millennium Copyright Act lays out enforcement measures. . . .

[BGuttman]

This seems to be getting more and more like the "fight" against pornography or the "war" on drugs.

These things would dry up and blow away in the wind if the demand was not there.

Why do people want to use these sites?  Because they perceive that the prices for the legitimate items are excessive.  If the legitimate cost for something was perceived to be correct most people would gladly pay the tariff and be done with it.

It might be that some products don't properly explain why their prices are what they are.

But when we have folks like Bill Gates amassing huge fortunes because the OS or the Office apps go for between $200 and $500 a copy, the perception is that we are paying for a lot more than his real costs.  Hence people go to pirate sites to avoid what they perceive as excessive profit taking.

There aren't too many people in this thing whose hands are really clean.

[HouBassTrombone]

http://www.wired.com/threatlevel/2012/01/scotus-re-copyright-decision/
Wow....

[BGuttman]

Nothing new here.  There is an International Copyright that is much more comprehensive than the US copyright and the Supremes are simply saying that we should adhere to the foreign model.

We had another time just before Congress passed the first Disney Relief Act (copyright extension) where a number of works from the 1920s and 1930s suddenly had passed their 56 year limit and reverted to Public Domain.  Then they reverted to copyright because of the first extension.  We have a couple of works in our library that we got during that "magic" period that if we lost we could never recover (they will probably remain under copyright as long as Walt Disney Enterprises remains in business).

[sly fox]

http://www.wired.com/threatlevel/2012/01/scotus-re-copyright-decision/
Wow....

here is the link to the text of most recent USSC decision on copyright issues which is referred to by HBT:

http://www.supremecourt.gov/opinions/11pdf/10-545.pdf

Golan v. Holder

. . . Petitioners are orchestra conductors, musicians, publishers, and others who formerly enjoyed free access to works §514 removed from the public domain. They maintain that Congress, in passing §514,exceeded its authority under the Copyright Clause and transgressed First Amendment limitations.

The District Court granted the Attorney General’s motion for summary judgment. Affirming in part, theTenth Circuit agreed that Congress had not offended the Copyright Clause, but concluded that §514 required further First Amendmentinspection in light of Eldred v. Ashcroft, 537 U. S. 186.

On remand, the District Court granted summary judgment to petitioners on the First Amendment claim, holding that §514’s constriction of the publicd omain was not justified by any of the asserted federal interests.

The Tenth Circuit reversed, ruling that §514 was narrowly tailored to fitthe important government aim of protecting U. S. copyright holders’ interests abroad.

Held:

1. Section 514 does not exceed Congress’ authority under the Copyright Clause. Pp. 13–23.
(a) The text of the Copyright Clause does not exclude applicationof copyright protection to works in the public domain. Eldred is largely dispositive of petitioners’ claim that the Clause’s confinementof a copyright’s lifespan to a “limited Tim[e]” prevents the removal ofworks from the public domain. In Eldred, the Court upheld the Copyright Term Extension Act (CTEA), which extended, by 20 years, the terms of existing copyrights. The text of the Copyright Clause, theCourt observed, contains no “command that a time prescription, onceset, becomes forever ‘fixed’ or ‘inalterable,’ ” and the Court declined to infer any such command. 537 U. S., at 199. The construction petitioners tender here is similarly infirm. The terms afforded works restored by §514 are no less “limited” than those the CTEA lengthened. Nor had the “limited Tim[e]” already passed for the works at issuehere—many of them works formerly denied any U. S. copyright protection—for a period of exclusivity must begin before it may end. Petitioners also urge that the Government’s position would allow Congress to legislate perpetual copyright terms by instituting successive“limited” terms as prior terms expire. But as in Eldred, such hypothetical misbehavior is far afield from this case. In aligning theUnited States with other nations bound by Berne, Congress can hardly be charged with a design to move stealthily toward a perpetual copyright regime. Pp. 13–15.

(b)
Historical practice corroborates the Court’s reading of the Copyright Clause to permit the protection of previously unprotectedworks. In the Copyright Act of 1790, the First Congress protectedworks that had been freely reproducible under State copyright laws.Subsequent actions confirm that Congress has not understood the Copyright Clause to preclude protection for existing works. Several private bills restored the copyrights and patents of works and inventions previously in the public domain. Congress has also passed generally applicable legislation granting copyrights and patents to works and inventions that had lost protection. Pp. 15–19.
(c)
Petitioners also argue that §514 fails to “promote the Progress of Science” as contemplated by the initial words of the Copyright Clause. Specifically, they claim that because §514 affects only works already created, it cannot meet the Clause’s objective. The creation of new works, however, is not the sole way Congress may promote“Science,” i.e., knowledge and learning. In Eldred, this Court rejecteda nearly identical argument, concluding that the Clause does not demand that each copyright provision, examined discretely, operate toinduce new works. Rather the Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” 537 U. S., at 222. Nothing in the text or history of the Copyright Clause, moreover, confines the “Progress of Science” exclusively to “incentives for creation.” Historical evidence, congressional practice, and this Court’s decisions, in fact, suggest that inducing the dissemination of existingworks is an appropriate means to promote science. Pp. 20–22.
(d)
Considered against this backdrop, §514 falls comfortably within Congress’ Copyright Clause authority. Congress had reason to believe that a well-functioning international copyright system would encourage the dissemination of existing and future works. And testimony informed Congress that full compliance with Berne would expand the foreign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, thus benefitting copyright-intensive industries stateside and inducing greater investment in the creative process. This Court has no warrant to reject Congress’ rational judgment that exemplary adherence to Berne would serve the objectives of the Copyright Clause. Pp. 22–23.
2. The First Amendment does not inhibit the restoration author
(a)
The pathmarking Eldred decision is again instructive. There, the Court held that the CTEA’s enlargement of a copyright’s duration did not offend the First Amendment’s freedom of expression guarantee. Recognizing that some restriction on expression is the inherent and intended effect of every grant of copyright, the Court observed that the Framers regarded copyright protection not simply as a limiton the manner in which expressive works may be used, but also as an“engine of free expression.” 537 U. S., at 219. The “traditional contours” of copyright protection, i.e., the “idea/expression dichotomy” and the “fair use” defense, moreover, serve as “built-in First Amendment accommodations.” Ibid. Given the speech-protective purposes and safeguards embraced by copyright law, there was no call for theheightened review sought in Eldred. The Court reaches the same conclusion here. Section 514 leaves undisturbed the idea/expressiondistinction and the fair use defense. Moreover, Congress adoptedmeasures to ease the transition from a national scheme to an international copyright regime. Pp. 23–26.
(b)
Petitioners claim that First Amendment interests of a higherorder are at stake because they—unlike their Eldred counterparts—enjoyed “vested rights” in works that had already entered the publicdomain. Their contentions depend on an argument already considered and rejected, namely, that the Constitution renders the public domain largely untouchable by Congress. Nothing in the historicalrecord, subsequent congressional practice, or this Court’s jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the public domain. Congress has several times adjusted copyright law to protect new categories ofworks as well as works previously in the public domain. Section 514, moreover, does not impose a blanket prohibition on public access.The question is whether would-be users of certain foreign works mustpay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of those works. By fully implementingBerne, Congress ensured that these works, like domestic and mostother foreign works, would be governed by the same legal regime. Section 514 simply placed foreign works in the position they would have occupied if the current copyright regime had been in effect whenthose works were created and first published. Pp. 26–30.
609 F. 3d 1076, affirmed. . . .