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Todd Jonz
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« Reply #20 on: May 19, 2006, 09:27AM »

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.
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« Reply #21 on: May 19, 2006, 10:15PM »

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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
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Todd Jonz
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« Reply #22 on: Jan 06, 2007, 02:17PM »

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.
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Paul Martin
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« Reply #23 on: Jan 11, 2007, 02:05PM »

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


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Todd Jonz
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« Reply #24 on: Jan 11, 2007, 07:52PM »

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.)
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Joe Jackson

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« Reply #25 on: Jan 12, 2007, 03:37AM »

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.
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« Reply #26 on: Jan 12, 2007, 10:26AM »

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.
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Dennis K.
« Reply #27 on: Jan 12, 2007, 10:48AM »

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.
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« Reply #28 on: Jan 12, 2007, 11:06AM »

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.

Quote
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.
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Todd Jonz
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« Reply #29 on: Jan 12, 2007, 11:32AM »


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. 

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« Reply #30 on: Jan 12, 2007, 08:05PM »

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.
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« Reply #31 on: Jan 13, 2007, 08:01AM »

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.
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« Reply #32 on: Jan 13, 2007, 03:20PM »

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...
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Dennis K.
« Reply #33 on: Jan 13, 2007, 03:43PM »

Quote
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?
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Todd Jonz
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« Reply #34 on: Jan 13, 2007, 11:27PM »


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.... 
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« Reply #35 on: Jan 14, 2007, 12:42AM »

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. 
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« Reply #36 on: Jan 14, 2007, 02:51AM »

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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!  Hi

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.

Quote
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.

Quote
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.

Quote
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.

Quote
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.

Quote
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.   Good!

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.
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« Reply #37 on: Jan 14, 2007, 06:37AM »

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.
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Dennis K.
« Reply #38 on: Jan 14, 2007, 12:26PM »

Thanks for filling in some blanks, Joe.
Quote
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. 
Quote
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?

Quote
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.
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« Reply #39 on: Jan 15, 2007, 07:38AM »

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.

Quote
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.

Quote
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).

Quote
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.

Quote
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.

Quote
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."
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