Copyright Discussion Page

This page will host a discussion of copyright law as we understand it today, as it applies to members of the group. We solicit input from group members on both U.S. copyright law and the copyright law in other countries. We understand they are very similar, but there are some essential differences.

You may post your speculations to the group, but we won't post mere speculation here; we will only post that which our members have found out through research and experience.

DISCLAIMER! By reading any further on this page, you are AGREEING THAT YOU UNDERSTAND THE FOLLOWING:

This is NOT LEGAL ADVICE. It is only reading and intepretation by lay people who have studied the subject and have various levels of experience reading about and dealing with publishers, the MPA, the U.S. and other governments,

ALWAYS SEEK THE ADVICE OF QUALIFIED LEGAL COUNSEL BEFORE MAKING ANY DECISIONS OR TAKING ANY ACTIONS INVOLVING COPYRIGHT ISSUES.

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GENERAL INFORMATION

Essentially, "copyright" is "the right to copy," and is made into law by most governments to protect creators of original work from having their work stolen. It applies particularly to "intellectual property," which for the purposes of this group means musical compositions, arrangements, performances, and recordings.

Copyrights are frequently either sold or assigned to a copyright administrator, usually a big publishing house or media corporation.

Copyright generally means that, for any musical work covered by it, you cannot legally make copies or scans of the sheet music, even a hand-written pencil copy, you cannot make a new arrangement of it, you cannot perform it in public, you cannot produce and distribute recordings of it, and you cannot copy recordings of it - without permission or paying a license fee. (USC Title 17, Ch1, §106)

We have never heard of any official "copyright police," but large corporate copyright administrators, in conjunction with the Music Publishers' Association, have been known to prosecute serious copyright violators.

There are a large number of "orphaned works," meaning works that are still technically covered by copyright, but that were either never published or have long been out of print and are no longer for sale, or works for which no one can locate the copyright owner. We have never heard of any prosecution for violation of copyright of an orphaned work; that doesn't mean there haven't been any, or that there won't be in the future. It simply means we haven't heard of any.

If you're interested in learning more, do a web search, or read the Wikipedia article here.

U.S. COPYRIGHT LAW

The copyright law of the United States is codified in U.S. Code Title 17.

The Horse's Mouth: You can download a PDF of U.S Government Circular 92, "Copyright Law Of The United States And Related Laws Contained In Title 17 Of The United States Code," here (a direct link to the PDF), or you can go to a page where you can download individual chapters here. You can find more information about the U.S. copyright law and procedures than you ever wanted to know, on the official U.S. government copyright website at http://www.copyright.gov.

The Essentials: For the most part, any copies of music you make are probably illegal. If you can purchase the sheet music or the recording somewhere, then making a copy of it is unethical as well as illegal.

That said, then we must consider that the main purpose of copyright law (see the disclaimer above!) is so we don't take money out of someone's pocket who is legally entitled to it. Agreed? With that in mind, you must decide for yourself whether it's okay for you to make a copy of something you cannot buy at retail today.

Public Domain: You can do anything you want with music in the public domain. You can copy it, play it, arrange it, record it, or program it into your car horn. Music is in the public domain if it was first published in the U.S. before 1923, or if it meets some other criteria - there's a good outline of those criteria here. For unpublished works, they are in the public domain if the creator died more than 70 years ago. That would be 1942 or earlier, as of this writing.

As you can see, most big band music - all that was published after 1923 - is probably protected by copyright.

Recordings: You may record any copyrighted work without permission, as long as it has been previously recorded at least once. You must, however pay the "compulsory license" fee, also known as a mechanical rights licensing fee. This fee is based on the number of copies of the recording you will produce and distribute.

The current (April 2012) per-copy fee is 9.1¢ for works of five minutes or less, or 1.75¢ per minute for works over five minutes. You can see the current fees (also called royalty rates) here. These rates are set by law, so no copyright administrator is allowed to charge more than these rates. To do a quick calculation, if you make 100 copies of a CD containing a song of 3:43 duration, you would owe a licensing fee of $9.10 for that song.

These fees are to be paid to the copyright administrator. You can usually discover who that is by using the ASCAP ACE database, here. Some of the larger corporations may try to require you to use the Harry Fox Agency to obtain this license, but they charge a $20 adminstrative fee, which for small recording projects can be a big hit per song. The law does not require you to use any agency; it merely requires you to pay the fee.

According to the law, you must get this license within 30 days after making the recording, and before distributing it. (USC Title 17, §115(b)(1))

Here's a technique we have used with success in the past: If we are producing 200 CDs, the licensing fee per song will run about $25 to $30. We send a check for the fee amount to the copyright administrator, along with a letter explaining we are a non-profit group making this CD for demo and fund-raising purposes, and would appreciate them giving us a license at no charge; we'll be happy to send them our recording. We also say that if they send the check back to us, or if they do not cash it within 30 days, we will take that as their donation of the license to us at no charge, and thank you very much for supporting our non-profit organization.

Big companies tend to get wrapped around the axle about nitpicky details. We once went round and round with a very nice lady at the Disney corporation about the license for a recording we made of "The Lion King." I bet they spent over $500 in adminstrative costs before they finally cashed our $31 check for the royalties. But we got the license, and were legal.

Some bad news: If you record a medley of six different tunes, you will owe six different licensing fees. Sometimes, the Harry Fox Agency can help with that, especially if it's a popular published medley, by wrapping them all into one fee.

One final curious thing about this compulsory license: When you pay your compulsory license fee, the license you get for that fee includes permission to arrange for that recording. Here's a direct quote from USC Title 17, §115(a)(2):

A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.

This is the only way we know of that you can make an arrangement of a copyrighted tune without the express permission of the copyright owner or administrator.

The nitpicky stuff. Okay, what about making archival copies? Backup copies? Scans of something you've bought, or digitizing your old CDs so you can hear them on your MP3 player? What about getting that second tenor sax part from another band because the spaced-out flake you hired for the last gig walked off with the part? Technically, if it's under copyright, then doing any of that is illegal. Practically, you might want to consider the law tenet that says, "Until someone complains, there is no crime." You have to make your own decisions about what you will and will not do. Know what the risks are, and be willing to live with the consequences of your actions.

We do NOT NOT NOT advocate breaking the law in any manner at all, and will always advise you NOT to do that, and to consult an attorney before taking any actions that are even questionable.

Other Sources of Copyright Information:

BitLaw - A good legal discussion and summary

Essay on Copyright Law - by a Massachusetts attorney specializing in copyright law; a bit heavy to read, but quite authoritative and informative.

New entries to come as we receive well researched and well-written submissions. Information about copyright laws and considerations in other nations is especially welcome.

Please click on any of the links at the top of the page for more information on any of the listed topics.