Copyright week, part III: The inconvenient truth

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Want to kill creative enterprise? One great way to do this is to illegally reproduce copyrighted music and recordings.

One of the ways people will justify reproducing portions of copyrighted materials is via the doctrine of “fair use.” There are four pillars of law regarding fair use, and you can’t cherry pick the most favorable three and think you are doing OK! The Wikipedia article on Fair Use quotes the relevant law statute:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

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

Or click here to see the actual statute in full. You can’t cut corners on this topic; almost any “fair use” you can conceive of actually would impact the fourth pillar, as it will have an effect on the potential market for a copyrighted work (as in you won’t buy a work or a properly licensed portion of a work if you can get it for free). Also, selling portions of a copyrighted work in any form is a problem, one that really can’t be whitewashed over. Just as “borrowing” [stealing] images from a website can be illegal, actual music or recordings that are under copyright need to be treated very carefully, lest some company with lawyers and deep pockets go after you.

Turning to sheet music, one composer that shows up on horn audition lists is Ravel. His earlier works such as the Pavane are in the public domain now, but later works are not such as the Piano Concerto in G. With that work ISMLP posts this notice:

Since this work was first published after 1922 with the prescribed copyright notice, it is unlikely that this work is public domain in the USA. However, it is in the public domain in Canada (where IMSLP is hosted), the EU, and in those countries where the copyright term is life+70 years or less.
IMSLP does not assume any sort of legal responsibility or liability for the consequences of downloading files that are not in the public domain in your country.

There is a practical reality that you can put short musical excerpts from copyrighted works in a handout or power point, but if you then go post those same things online it becomes problematic.

kopprasch-Op5Speaking generally though, if it is a published edition and it was published before 1923 it is in the public domain as of now in the U.S.A. and you can do anything with it (post it online, reprint it, etc.). For a little broader picture of the topic the Wikipedia article on public domain is as good a place to start as any.

But digging a little deeper, turning to the Wikipedia article on public domain in the United States, the lack of a copyright notice does not necessarily mean that the publication (or manuscript) is in the public domain. There we read the following:

Until the Berne Convention Implementation Act of 1988, the lack of a proper copyright notice would place an otherwise copyrightable work into the public domain, although for works published between January 1, 1978, and February 28, 1989, this could be prevented by registering the work with the Library of Congress within five years of publication. After March 1, 1989, an author’s copyright in a work begins when it is fixed in a tangible form; neither publication nor registration is required, and a lack of a copyright notice does not place the work into the public domain.

What about orchestral excerpts you need that are not from public domain works? The conversation will continue in the next installment.

Continue reading Copyright Series

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