COPYRIGHT

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When it comes to copyright, what is expedient is not always what is right.
The best book on the topic, especially in light of the implications of digital music, is Jim Frankel's The Teacher's Guide to Music, Media, and Copyright Law (Hal Leonard/TI:ME). The following summarize some concerns specific to using notation software in arranging, etc.

Copyright is just what the term implies, the right to copy. Laws pertaining to copyright try to keep up with the technology used to make copies of protected material, whether it’s a mimeograph machine, a Xerox copier, or an //iPod//. Recent strides in technology – Internet posting and downloading of music, ubiquitous CD/DVD burning, and sampling to name a few – have stretched existing laws and prompted new ones. Throughout this article, I’ll offer general principles for your consideration, sharing relevant anecdotes that illustrate some problems I’ve observed. For specific information and the particulars of copyright law as it relates to your music teaching, I’ve provided a list of helpful agencies and organizations (see sidebar “Copyright Law Resources”).

Fair Use allows persons to employ protected material in a very limited way without a fee. Many educators incorrectly assume that they and their students may use protected music without restriction because it is education-related and not for profit. However, for the use to be “fair,” at least three criteria must be met:
 * Fair Use and Public Domain **
 * **First, the use should not be a substitute for or discourage normal sales of the material.** If the use you have in mind circumvents you or your students having to make a purchase, it probably isn’t Fair Use. Let’s say you have personally purchased a great collection of drum and bass loops. It would not be right to copy those loops onto all the computers in your music tech lab at school so the kids could enjoy using them, even if they would be using them for a class project. Instead, you should have your school or district purchase the appropriate number of loop collections.
 * **Second, the use should be limited.** If you are appropriating protected music for use in an educational project, it should be a very brief excerpt, not a complete work or movement. For instance, imagine a group of students is doing a composer podcast on the music of Beethoven. They want to include several audio examples of important works, including Beethoven’s Fifth Symphony. Although the work is in the public domain, pretty much any good recording they are likely to find isn’t. If the students include the complete 1975 Deutsche Grammophon recording by Carlos Kleiber and the Vienna Philharmonic Orchestra in their podcast, anyone who downloads the podcast would have that recording without having paid for it. Even including the entire first movement crosses the line. Copyright law allows for educational use of up to 10%, but generally not more than 30 seconds, from a single work or stand-alone portion of the work (such as a movement). Including a 30-second sound clip from the opening movement of the Beethoven symphony would be OK and should be enough for students to make their point.
 * **Third, the use should be non-commercial in nature.** If students use GarageBand to produce their own arrangement of Tito Puente’s “Oye Como Va,” which is then included on a CD of student work sold to parents as a fund-raiser for new equipment, a mechanical license must be secured.

====**A mechanical license “is the right to record and distribute (without visual images) a song on a phonorecord for private use. Mechanical rights or a mechanical license must be obtained in order to lawfully make and distribute records, CD's and tapes.” Right now the statutory mechanical royalty rate is about 9 cents per song for songs up to five minutes in length. A mechanical license can be obtained by contacting the copyright holder (i.e. music publisher) directly. Music teachers, however, often use the services of the Harry Fox Agency (www.harryfox.com) when they need to secure a mechanical license. Harry Fox adds a nominal charge for their services, but many busy educators find the administrative chores they are spared well worth the fee.**====

====**EXAMPLE: Let’s say your middle school Music Recording Club will be producing a CD to sell as a fund-raiser. There will be nine tracks: six original songs, and three “covers” of songs which are protected by copyright law. Assuming the three cover songs are each about four minutes long, and that you expect to sell 250 CDs, it would cost the club about $68 to license the music (.09 cents x 3 songs x 250 units = $67.50), or about $115 if using the Harry Fox Agency (whose per song fee is about $15). However, if the club sold the CD for only $5.00, their gross sales would be $1250 (250 units x $5 = $1250). Even with the Harry Fox Agency fee and a few miscellaneous expenses, the club would realize a net profit of about one thousand dollars ($1250 - $115 = $1135).**==== ====**Sometimes, as they say, “money speaks louder than words.” Conducting a recording project such as the one described above delivers a potent message: doing things the right way can still be a very profitable way.**====

There is a huge treasure trove of musical and other content that your students can use for free: works in the public domain. Public Domain describes music that has been around so long that it is now fair game for anyone to use it without a fee. In general, under the U.S Copyright Act of 1976, music enters the public domain 70 years after the death of the composer. Whether or not a work is in the public domain depends on when it was created, whether it’s copyright was renewed, and whether its creator has passed away. One good rule of thumb is as follows: **anything written in the U.S. before 1923 is in the public domain**. Students looking to incorporate public domain content – whether that be audio files, MIDI files, sound effects, still pictures, or videos – in class projects can find much from which to choose at web sites such as the Internet Archive (www.archive.org).
 * Public Domain**

Here are some common areas where I have observed ethical dilemmas involving copyright law and technology in music education:

It is probably no exaggeration to say that hundreds of high school band directors arrange, or pay to have arranged, protected music for their marching band (and indoor drumline, etc.) programs each year. Although it has been fairly easy to do this without contacting the copyright holders (usually the publisher and/or the composer), some states and competitive organizations are very diligent about encouraging their members to acquire permission properly. Note that obtaining permission to make an arrangement is not the same as receiving permission to //perform// the arrangement. In some cases, a composer’s royalty is based on the size of the venue and whether admission is charged. When you seek permission you may be asked for those details. I encountered all this as a composer a year ago when a high school director from the Midwest contacted my publisher about adapting a percussion ensemble work of mine for their indoor drumline to use at the Bands of America competition. Frankly I was tickled at the prospect and convinced my publisher to make it happen inexpensively since it would be free advertising!
 * Arranging and Performing **

Many tech-savvy band directors use notation software to create custom parts for published music. For instance, say you have no tuba in your elementary band so you scan the tuba part into //Finale// or //Sibelius// and change the clef and key so a baritone saxophone or even some of your alto saxophones (up an octave or two) can play the part. According to the permissions department at Alfred Publishing, most of the time – including this scenario – this is fine. However, say the piece doesn’t have a clarinet part to challenge your best few players so you write your own “Advanced Clarinet” part. This would be adding creative content and technically requires you to contact Alfred for permission.

It’s simpler than ever to chase down a permission using email or fax. To get contact information for a publisher’s //permissions department//, visit the publisher’s Web site. The Web sites mentioned in the **@Copyright Resources** provide a treasure trove of helpful information.

A disturbing twist to the copyright picture is that it is also easier than ever for copyright holders to use technology to discover illegal uses, including those by music educators, of their protected material. I met a high school band director in one of the summer classes I taught last year who was being threatened by a publisher with a suit against him and his district for including their protected music in his marching band’s field show. It seems he was “found out” because the piece (a concert band work by a highly regarded Netherlands composer) was mentioned on their marching band’s Web site and an attorney for the firm was engaging in a sort of Internet “trolling” for violations. The goal of this endeavor, which is becoming more and more common, is not prosecution but a much cheaper and expedient out-of-court settlement (which his district was reluctantly going to pay).

When your high school choir’s spring concert is recorded and sold to choir families, there are mechanical license questions you need to ask. Is any of the music you perform under copyright protection? Unless it’s an all-Mozart program, the answer is probably yes. If you or the school did the recording, you must obtain a mechanical license from each publisher of copyrighted music on the program. This is not expensive (for instance, Alfred Publishing charges $.085 per unit for one of its band pieces) but it takes some time. If you don’t mind paying a little more, you could “one stop shop” for the mechanicals at the Harry Fox Agency (see **@Copyright Resources**). If you use a professional recording service instead, you should find out if they will obtain the licenses for you or if you must do so yourself.
 * Recording, Broadcast, and Web Posting **

Although rare, sometimes school ensembles perform for television or radio broadcast. In those instances you should clear the performance in advance. These days it’s much more likely that a performance by your ensemble might be posted on a department or school Web site. If you want to post a performance of any protected music, you must first get permission either via one of the music licensing agencies (see **@Copyright Resources**) or directly from the publisher. The ease of creating Web pages and the proliferation of such resources to augment music courses raises many issues related to fair use of copyrighted material. Posting recorded //excerpts// of protected music involves many variables, such as: > Publishers of ensemble music have a balancing act to perform when they arrive at the number of parts for each instrument they include in a set. The “standard” size of a band, or any sections within a band at a given level, varies greatly according to school, district, and state/region. Despite their best efforts to get it right, there will inevitably be too few of some instrument’s part for your ensemble. Or maybe the set you got from the publisher has enough of everything, but you don’t trust your students to return the music in good condition (or at all!) when the concert is over. While copying music in these scenarios is both convenient and all too common, it is wrong.
 * ** Length. ** Is the audio an entire section or piece, or just a brief passage?
 * ** Production. ** Was this recording done by you, by a recording service, or is this a professionally produced recording you have purchased (such as the CD that came with your music appreciation text, or a recording of the Philadelphia Orchestra, etc.)?
 * ** Web site access. ** Is the site open to all visitors, or only by certain users (i.e. Blackboard) by means of a password?MIDI files present a further complication to posting music online. I encountered this when I sought to post MIDI file realizations (MIDI sequences) of concert selections for my first- and second-year band students at a Web site I created for the kids. I had students play along with these accompaniments during school lessons in the weeks before our full band rehearsals started and I wanted them to be able to do the same from home. Even though I created the MIDI files, they were of published compositions. Plus I wanted to post entire selections, not just excerpts. I decided to contact the publishers using email and fax, supplying them with the vitals (title, composer/arranger, copyright date). I’ve done this for years now and have received permission at no cost from every publisher except one. Although the U.S. Copyright Law states that the sort of permission described above must be done prior to posting music, in practice you should be contacted first if there is a violation to give you the opportunity to comply or remove the protected material.
 * Copying Parts **

The same goes for out-of-print music you are unable to find for purchase. You are not entitles to make needed extra copies of a piece of music in your library just because the work is no longer in print. Instead, contact the publisher who will grant you a license to make the number of copies you need, usually for a very reasonable, one-time payment. Fortunately, more music for schools is being published electronically. This music is generally less expensive and allows for unlimited copies of parts to be printed by the purchaser for use at their institution. Visit Jon Ross Music at www.pdfband.com for an example of such an electronic publisher.

I teach a high school AP Music Theory class. The Apple Music Store (with //iTunes//) has bailed me out many times when I’ve been in a bind for listening examples. I can download a wide variety of music to use for examples in class for just 99 cents each. But there are limitations as to how downloaded music may legally be copied. No doubt you, or at least your students, are aware of the high profile intellectual property suits launched in recent years by recording companies against thousands of folks (many students) who downloaded music from Web sites that facilitated file sharing such as Napster and Kazaa. “That’s a kid problem,” you might say. Perhaps. But when you download Diana Krall’s latest CD from the Apple Music Store and use //iTunes// to burn copies for your entire jazz band you’re doing the same thing. Likewise when a trumpeter in your section brings in his new Rick Braun CD for you to listen to and – while you have it – you figure it’d be OK to rip a few tracks to add to your collection. Instead, why not get your school or parent organization to purchase a subscription to an MP3 download site such as emusic.com and use the ample number of monthly downloads allotted to start a slammin’ band room library?
 * File Sharing **

In recent years it seems there has been a surge in the number of intellectual property lawyers in the United States, fueled by new laws and an increasing awareness of the rights of the creators of content along with their success in making legal claims for compensation. We’ve come a long way from the quite common 17th and 18th century practice of freely borrowing and integrating the words and music of others to our current understanding of intellectual property. Technology continues to evolve and present new means of copying as well as untested and legally unclear copyright scenarios.
 * The Best Approach to Copyright is to Copy //Right// **

Many school districts, in an attempt to keep pace with this shift, have implemented new policies and in-service training regarding working with copyrighted material. These efforts, however, are often geared toward classroom teachers of academic subjects rather than music education applications. In many cases this leaves music teachers to fend for themselves, sometimes making copyright decisions that – while seeming reasonable – are technically illegal. The next time you are faced with a decision involving copyright that seems unclear to you, I’d like to encourage you to do the following:
 * 1) ** Check it out. ** The answer to most music teacher’s everyday copyright questions can be obtained quickly and easily by visiting a web site or two. Why not confirm for yourself the best course to take regarding a copyright issue?
 * 2) ** Ask around. ** You may have a colleague who has already encountered the scenario you are questioning. Using information found on the Internet, publishers and their Permissions Departments are fairly easy to contact via email/fax.
 * 3) ** Err on the side of the artist. ** I’ve observed that when most music teachers circumvent copyright law it’s more a matter of convenience than money. This is easy to understand with our professional and personal schedules so full, and our ability to multitask being stretched to the limit. However, we convey to our students an important lesson about the worth of art and creativity – the very thing we attempt to teach each day – when they observe our attitude toward copyright. In many cases our school districts are willing to pay for the right to use music in its many forms but we just haven’t asked because it takes a little time. Don’t underestimate your role as a teacher of music, and therefore a consumer of music, in determining the vibrancy of the musical landscape in these challenging times for the arts.

Check out this famous blog thread on copyright infringement by composer, Jason Robert Brown.