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Thread: Copyright - Staying on the Right Side of the Law

  1. #11

    Church Solo Literature

    Speaking as one who has many charts published and would like to receive my royalties, I think Rick's description in the previous posts is fine - in a real world. Now I don't argue that Rick's action could be considered illegal by the letter of the law. Under the law, and under the wording often found at the bottom of sheet music, you can't do anything anytime anywhere for any reason in the realm of reproducing any part of the publication. That would include writing out your transposed part so you could play it.

    However, if I played the arrangement I would produce exactly the same result, but I transpose at sight so I would not have to copy the part in any way. It all happens in my head. But in my head I am actually "altering" the part, which is not allowed (copyright notices sometimes say I may not alter the part in any way).

    What Rick did was to move the activity that takes place within my head into his music program. The performed result is the same. The number of copies purchased is the same.

    While any of this might be tough to argue in front of a judge, especially if the judge is grumpy, I believe no publisher would go after Rick.

    The copyright law is intended to protect the composer/arranger from losing royalties and to prevent the publisher from losing sales. If you made Finale copies to avoid having to buy extra, available parts, surely that would be cheating folks out of money. If you further arrange an arrangement to create a new entity, that is also a violation. But since Rick simply facilitated for his skills what I might be comfortable doing in my head, nobody lost any money on the deal. There was no treble clef Bb part available to purchase. In fact, if Rick had not thought it was OK to transpose the part this way, he presumably would not have purchased the music in the first place.

    I have lost track of the number of pieces I own (or have played in the CG Band) that were not possible to perform as published. They were carelessly typeset so that a page turn came in the middle of a difficult passage, sometimes within a bunch of 16th notes. They also came with a notice at the bottom that disallowed copying of any kind. In order to perform them I copied a page of the music to facilitate the page turn. Based on the printed copyright notice, that was a violation. (If these publishers were high-profit corporations, then the best course of action would be to organize the music community enough so that buyers would return any music that came this way and demand a refund. That would force publishers to take notice and actually lay out the music so it can be played without photo copying it! But in a real world, all that would accomplish is to drive even more of these struggling businesses out of business, and we certainly don't want to do that.)

    [Edit] Come to think of it, if the notice says you may not alter the part in any way, that would also not allow you to correct a wrong note in the part if you take it literally. Now THAT would make a strange court case, although I think I have heard of even stranger court cases!

    I know the above is not fully in the realm of allowed/disallowed in the legal sense, and therefore does not fully satisfy the points Pam brought up. But most publishers are reasonable and apply the law in a way that protects their real interests.

    Rick, feel free to call on me as a character witness if you end up in court

    Dave Werden (ASCAP)
    Euphonium Soloist, U.S. Coast Guard Band, retired
    Adams Artist (Adams E3)
    Alliance Mouthpiece (DC3)
    YouTube: dwerden
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  2. #12

    Church Solo Literature

    Rick,
    I noticed that the score has melody lines for bass/tenor (bass clef) and soprano/alto (treble clef).
    Was your transcription simply to get from concert pitch to B-flat treble clef?
    - Carroll
    Carroll Arbogast
    Piano Technician
    CMA Piano Care

  3. #13
    Join Date
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    West Palm Beach, FL
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    Church Solo Literature

    Originally posted by: carbogast

    Rick,

    I noticed that the score has melody lines for bass/tenor (bass clef) and soprano/alto (treble clef).

    Was your transcription simply to get from concert pitch to B-flat treble clef?

    - Carroll
    Yes, that's all I did.
    Rick Floyd
    Miraphone 5050 - Warburton BJ / RF mpc
    YEP-641S (recently sold)
    Doug Elliott - 102 rim; I-cup; I-9 shank


    "Always play with a good tone, never louder than lovely, never softer than supported." - author unknown.
    Symphonic Band of the Palm Beaches
    El Cumbanchero (Raphael Hernandez, arr. Naohiro Iwai)
    Chorale and Shaker Dance
    (John Zdechlik)

  4. #14

    Church Solo Literature

    As a practical matter, I think that facilitating the performance of a purchased copy is very much in the publishers interest. I'm sure a publisher would like to see the music purchased *and* performed as it will lead to more purchases (especially if performed on euphonium ). I wouldn't be surprised if this piece has seen a bump in sales recently!

    - Carroll
    Carroll Arbogast
    Piano Technician
    CMA Piano Care

  5. #15

    Church Solo Literature

    Long-time lurker chiming in. I apologize in advance for the length of this post.

    Speaking as a lawyer who occasionally represents authors, content creators, and print publishers, and with the understanding that what follows is NOT legal advice, and may be cited to justify infringement or as proof against infringement actions, and at the risk of driving this topic into the ground ...

    From a strictly legal perspective, Pam is correct: the copyright owner is Hope Publishing, not Ms Berry, so Ms Berry's reply notwithstanding, RickF's transcription of the arrangement infringes the copyright, albeit inadvertently. [To his credit, RickF did attempt to obtain permission for his adaptation from the arranger, on the assumption that, as the creator of the arrangement, she owned the copyright: a natural mistake for those who unfamiliar with the common publishing industry practice of composers/arrangers assigning the copyright to the publisher.]

    In general, it is unlikely that a publisher would pursue an action against what is, at best, a de minimus infringement such as we have in this instance, provided that infringer owns a non-infringing copy of the original work AND provided that the arrangement is not distributed or offered for distribution, since it would be difficult to demonstrate that the mere creation of the infringing arrangement has harmed the copyright holder's financial interests.

    HOWEVER, distributing an infringing arrangement may be enough to trigger an action since the extent of the harm is both demonstrable and quantifiable.



    Mr. Werden's comments reflect several common misunderstandings of what is and is not permissible with respect to copyrighted works. (That is completely understandable, given the complexity of copyright law and the often contradictory judgments of various courts on copyright infringement lawsuits.)

    Under the law, and under the wording often found at the bottom of sheet music, you can't do anything anytime anywhere for any reason in the realm of reproducing any part of the publication.
    This is not quite correct. Although, in general, you cannot reproduce the entirety or a substantial portion of a copyrighted work without obtaining prior permission from the rights owner, the fair use provision of copyright law does permit limited copying and distribution of copyrighted works without the author's permission in some cases. One may, for example, incorporate extracts of a copyrighted work in one's work for the purpose of commentary, criticism, review, or parody and distribute those extracts without needing to obtain permission from the copyright owner.

    In the presenting instance, the arrangement would fail the fair use test because it reproduces a substantial portion (the entirety of the melody and the piano accomp) of the copyrighted work.

    However, if I played the arrangement I would produce exactly the same result, but I transpose at sight so I would not have to copy the part in any way. It all happens in my head. But in my head I am actually "altering" the part, which is not allowed (copyright notices sometimes say I may not alter the part in any way).
    This is not really a valid parallel since copyright protects only the fixed expression or manifestation of an idea, not to the idea itself. For the purposes of copyright, "fixed" means that the work must not be transitory but recorded in a medium that allows for reproduction: typed, handwritten, recorded, photographed, etc.

    An on-the-fly transposition, such as is described here, is not a fixed expression, so it would not (and, by definition, cannot) infringe a copyright. [A sound recording of the on-the-fly transposition would not infringe the copyright, since the performance itself was non-infringing, however, a transcription of the on-the-fly transposition would infringe the copyright because the transcription would provide an alternative, competing version to the copyrighted work on which it is based. (Are we confused yet? )]

    But since Rick simply facilitated for his skills what I might be comfortable doing in my head, nobody lost any money on the deal.
    That is true insofar as it pertains to Rick's personal use of his arrangement, however, it is not necessarily true as it pertains to THM's request for a copy of his arrangement. While Rick, having purchased 6 fair (non-infringing) copies of the copyrighted work, would be within his right to sell, give, lend, or rent those fair copies (due to first sale exhaustion), he would not have the right to distribute copies of an infringing derivative work, either along with or independently of the fair copies, since doing so would necessarily undermine an existing or a potential future market for the copyrighted work. (Remember: copyright grants the owner the exclusive right to exploit and to distribute the copyrighted work and any derivative works, for the duration of the copyright period.)

    The copyright law is intended to protect the composer/arranger from losing royalties and to prevent the publisher from losing sales.
    While protecting the copyright owner's financial interest is one important function of copyright, it is not the only--and, arguably, not the primary or the most important--interest that copyright protects.

    First and foremost, copyright protect the composer's/arranger's moral rights, which are absolute, perpetual (they survive the expiration of the copyright), and inalienable (they remain with the creator even if the creator surrenders or transfers other rights, such as the right to exploit the work to another party).

    The first, and most obvious, moral right is the right to attribution, that is, the creator of a work has right to be receive credit for it. (There is an exception in the case of a work made for hire, such as by an employee in the course of performing his or her job, or commissioned works, whereby the employer/commissioner is deemed the author of the work, unless the parties to the contract agree otherwise.) So, for example, I could not arrange David Holsinger's On a Hymnsong of Philip Bliss, for recorder consort and claim authorship of the work, or incorporate a substantial portion of it into a larger work, even with the appropriate permissions, and claim authorship of the whole.

    Perhaps the most important right that copyright is intended to protect--arguably more important than even the financial interest--is the creator's moral right right to the integrity of his or her work, that is, the right to have the work distributed free of "any distortion, mutilation or other modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author's honor or reputation," (Berne Convention for the Protection of Literary and Artistic Works, Article 6bis).

    Good name in man and woman, dear my lord,
    Is the immediate jewel of their souls.
    Who steals my purse steals trash; 'tis something, nothing;
    'Twas mine, 'tis his, and has been slave to thousands;
    But he that filches from me my good name
    Robs me of that which not enriches him,
    And makes me poor indeed. - Iago, Othello, Act 3, scene 3, 155-161


    Come to think of it, if the notice says you may not alter the part in any way, that would also not allow you to correct a wrong note in the part if you take it literally
    Printing errors strike at the integrity of a work. As such, they may be corrected without obtaining permission from the rights holder (though it would certainly be prudent to confirm with the rights holder that what one believes to be an error is, in fact, an error.)

    [Note that, in the US, a copyright notice consists of three elements: the copyright symbol (© ) or word ("Copyright" or "copr." ), the copyright symbol (© ), the year of first publication, and the name of the copyright owner.

    The reservation of rights ("All rights reserved") is NOT part of the copyright notice and is required in the US or in most of the world for copyright protection to attach to the work, although it it IS required by Bolivia and Honduras. While rights holders do frequently juxtapose additional verbiage with the copyright notice that attempts to impose restrictions beyond those granted by copyright law, those restrictions are exercises of copyfraud, and have no legal force.]

    To Caroll's comment that:
    As a practical matter, I think that facilitating the performance of a purchased copy is very much in the publishers interest. I'm sure a publisher would like to see the music purchased *and* performed as it will lead to more purchases
    Publishers would like to see their music purchased and performed, and, in my experience, having made SEVERAL dozen private arrangements from copyrighted works, music publishers, by and large, are particularly accommodating to requests for permission to arrange for my or my church ensemble's personal use (I can recall only three occasions in the past dozen or so years on which a publisher declined permission: in two of those instances because a similar arrangement already existed; in the third, the publisher sent me, unasked and free of charge, a copy of the Finale file of a licensed, but at the time yet unpublished, arrangement of the work)--though, quite understandably, in no case did the publisher grant permission to make or distribute copies of those arrangements beyond those needed for the occasion for which permission to arrange was sought.

    Nevertheless, a publisher's desire to have its works purchased and performed and a publsher's willingness to grant permission does not excuse, nor should it be used to excuse, infringement of its copyrights.

    Understanding the ins and outs of copyright lay can be complex and confusing, and it is certainly understandable that, when confronted by the mare's nest of copyright can's, can'ts, do's, and don'ts, people simply to throw up one's hands and say, "Who cares about copyrights? Just do it."

    The idea underlying copyright law, however, is quite simple. As Hope Publishing expresses it in their Copyright FAQ:


    6. WHAT IF I AM FACED WITH A SPECIAL SITUATION?

    If you want to include copyrighted lyrics in your bulletin . . . arrange a copyrighted song for four baritones and kazoo . . . or make any use of copyrighted music in any way, the magic word is . . . ASK. Copyright owners as a whole wish to see their music used by the widest possible audience. You may or may not receive permission, but when you use someone else’s property you must have the property owner’s consent.
    "When you used someone else's property you must have the property owner's consent."

    That's really what it boils down to, in the end.

    I would hope that in wrestling with the issue of copyrights and permissions, church musicians, particularly those of us who are professed Christians whose motive and desire is to use our musical gifts and talents to the glory of our God would approach it, not as primarily a legal issue, but as a matter of personal integrity, bearing in mind Paul's admonition:

    Pay to all what is owed to them: taxes to whom taxes are owed, revenue to whom revenue is owed, respect to whom respect is owed, honor to whom honor is owed. Owe no one anything, except to love each other, for the one who loves another has fulfilled the law. For the commandments, “You shall not commit adultery, You shall not murder, You shall not steal, You shall not covet,” and any other commandment, are summed up in this word: “You shall love your neighbor as yourself.”Love does no wrong to a neighbor; therefore love is the fulfilling of the law. -- Rom 13.7-10, ESV


    Again, my apologies for the length of this post.



    Pgym.

    ----------

    Don't take legal advice from a lawyer on the Internet. I AM a lawyer but I'm not YOUR lawyer.






  6. #16

    Church Solo Literature

    Thanks for the thorough clarification, Pgym. Please note that the first quote of mine you used above was purposely exaggerated from what in any way relates to actual copyright law verbiage. The exaggeration was not pointed at copyright law, but rather at the publishers' statement I have seen on several compositions. Their statements of what I am not allowed to do are not so far off from my words.

    And that is part of my context for some of the other statements. While clearly a silly point, my statement about correcting a wrong note would seemingly NOT be allowed based solely on some publishers' statements I have seen. My memory is not clear as to how many different publishers' used such strong language. I believe it was several. (Naturally I do not have photocopies of those pieces so I can't say for sure!!)

    I should have been clearer about when I was referring to a publisher-generated statement and when I was discussing actual copyright law (which indeed IS confusing).

    FWIW, some publishers are extremely reasonable and flexible, and a few are surprisingly unreasonable. When preparing the first legal euphonium excerpt book (the first one I know of, at least), we approached one publisher who owned a very commonly-played piece of a famous modern composer. We were asking for permission to publish about 5% or less of one part. They refused. Even if there was a legal provision I could have used to do it in this context, I did not feel like picking a fight so we left that excerpt out. Using it certainly would not have hurt sales of the music (this publisher did not offer individual parts for sale), and one could rightfully argue that having it in an excerpt book contributes to having it played better when it is performed.

    Come to think of it, it would be fun to start a thread where people can post the most restrictive-sounding notices (or then again, maybe that would be illegal?? Is a publisher's copyright notice wording part of the copyright-protected notice?).



    Dave Werden (ASCAP)
    Euphonium Soloist, U.S. Coast Guard Band, retired
    Adams Artist (Adams E3)
    Alliance Mouthpiece (DC3)
    YouTube: dwerden
    Facebook: davewerden
    Twitter: davewerden
    Instagram: davewerdeneuphonium

  7. #17

    Church Solo Literature

    For heaven's sake, Rick purchased the piece and any modifications were for his own use. No revenue was lost; no royalties unpaid. If I buy a piece of music with repeats and make cuts to the repeats: for example, go on to the second ending, without playing the first ending, am I therefore in copyright violation for modifying the piece (which I did)?

    "If the law supposes that," said Mr. Bumble,... "the law is a ass - a idiot." Dickens, "Oliver Twist"


  8. #18

    Church Solo Literature

    Last contribution on this topic:

    Originally posted by: JTJ If I buy a piece of music with repeats and make cuts to the repeats: for example, go on to the second ending, without playing the first ending, am I therefore in copyright violation for modifying the piece (which I did)?
    If you created a separate, fixed transcription of the cut version to perform from, yes, albeit a de minimis one; if the cuts were notated on a non-infringing copy of the work or flagged in your head and executed during the course of performance, no.

    Again, the potential problem in the presenting scenario is not the creation of the arrangement,per se, which, by itself is likely to be considered a de minimis infringement, but the subsequent request for a copy of the arrangement, which, if fulfilled (even at no cost to the recipient) would compound the degree of infring ement by adding infringement of copyright holder's exclusive rights to distribute and to exploit the copyrighted work to the original infringement of the right to prepare derivative works, which, taken together, would almost certainly exceed the threshold of de minimis infringement.

    While the law may very well be--and often times is--an ass, it is, nevertheless, the law, and those who would violate it must be prepared to accept the penalty that may arise from violating it.


  9. #19
    Join Date
    Jan 2006
    Location
    West Palm Beach, FL
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    Church Solo Literature

    This has been an interesting discussion.

    I'll be more careful in the future to get the proper permission. Since I would like to play this again some day in church I plan to contact the publisher for permission.
    Rick Floyd
    Miraphone 5050 - Warburton BJ / RF mpc
    YEP-641S (recently sold)
    Doug Elliott - 102 rim; I-cup; I-9 shank


    "Always play with a good tone, never louder than lovely, never softer than supported." - author unknown.
    Symphonic Band of the Palm Beaches
    El Cumbanchero (Raphael Hernandez, arr. Naohiro Iwai)
    Chorale and Shaker Dance
    (John Zdechlik)

  10. #20

    Church Solo Literature

    Well, hello pgym! You are the lawyer, but not my lawyer from Tubenet.

    If anyone tried to bring suit based on what Rick did, they would be laughed out of court, because no harm was done (an important legal concert); and what was done was trivial.

    For over 20 years I managed a major college bookstore, which had a custom publishing department clearing many thousands of copyrights a year for class use, some of them musical copyrights. One thing I learned: the law is very fuzzy, with conflicting and equally defensible, contradictory standards for what is fair use. I believe that the illegal copying or modification of copyrighted music, by any standard, is a widespread problem; to combat that music publishers are taking an extremely hard line on what is legal, but that position may not ultimately prevail if fully tested in court.

    "The reason I talk to myself is because I'm the only one whose answers I accept." George Carlin

    My final 2¢ on this.


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