Music

 Music Permission Forms are accessible through the link.


Music

Music companies are some of the most aggressive in protecting copyright. Many large fines have been leveled at individuals, companies, schools, and churches. You can be fined for every illegal copy plus lost revenue to the copyright holder.

The playing of a record, tape, or compact disc is considered a “performance” of the copyrighted work. All public performances of such works require permission from performance-rights organizations such as ASCAP, BMI, or SESAC, or from the copyright owner. The performance of such a work in a classroom for educational purposes is not considered a public performance, as the audience is limited. Following are some guidelines for educational use of music.

Current U.S. Copyright Law represents an attempt by Congress to balance the rights of creators and copyright proprietors with the rights of copyright users. That is, Congress wanted both to protect those that produce and own copyrighted materials (composers and publishers) and to recognize the needs of those that use and enjoy those materials (listeners, performers, and prominently, music teachers).

The compromise represented by the Law is the result of numerous congressional hearings as well as studies conducted by the U.S. Copyright Office, in connection with which a substantial amount of testimony was heard and numerous comments were received from members of both groups. Of course, debate on the best way to manage the use of creative materials was and is contentious, particularly around the specific ways that educators can properly use copyrighted works without a formal license. It is no surprise that copyright proprietors endeavor to protect the incentive for creative effort, whereas educators wish to incorporate such works in their instruction without over-restrictive regulations or costly permission fees.

Basically, the legislative compromise permits educators, subject to certain limitations and exceptions, to use copyright protected works in the classroom setting while still affording copyright proprietors significant protections against excessive or commercially-damaging unauthorized use. Using the simple ideas put forth here, music educators will be able to better focus on the core job of teaching and to protect themselves and their schools from liability -- the unpleasant possibility of being sued.

Two basic factors must be taken into consideration:
  1. The pedagogical need of music educators for reasonable access to copyrighted material
  2. The practical need for music creators and their publishers to stay in business


Rights of Music Copyright Owners

The U.S. Copyright Law is designed to encourage the development of the arts and
sciences by protecting the creative work of composers, authors, poets, dramatists, choreographers and others. The law deals first with the exclusive rights belonging to the owner of a copyright (which may be the composer or, if a deal has been cut, a publisher). These are things that only copyright holders can do—unless they grant specific permission to others.

These rights, as stated in the law and relating to materials likely to be used by music teachers, are:
  • To reproduce the copyrighted work in copies or recordings
  • To prepare derivative works (e.g., arrangements) based upon the copyrighted work
  • To distribute copies or recordings of the copyrighted work to the public (mostly by sale, but also by rental or other methods) 
  • To perform the work publicly
  • To perform the copyrighted work publicly by means of a digital audio transmission
So the law starts out by saying that the copyright holder has the exclusive right to reproduce, arrange, and perform works. The law, however, proceeds to limit these rights in certain specific instances, including library copying and educational broadcasting. The most important group of limitations for music teachers is embodied in the section of the law that outlines the concept of “educational fair use.”
Use by Educators—Reproducing

In 1967 and again in 1975, legislators asked for help from the field (including the organizations that sponsor this document) to develop classroom guidelines to help music teachers and others analyze these factors. Based on this legislative compromise, the intent of the law seems to be that music educators can do several things, without having secured permission of the copyright owner:
  • Make a copy of a lost part in an emergency, if it is replaced with a purchased part in due course
  • Make one copy per student of up to 10% of a musical work for class study as long as that 10% does not constitute a performable unit
  • Make a single recording of a student performance for study and for the school’s archive
  • Make a single recording of aural exercises or tests using copyrighted material
  • Make up to three copies to replace a copy that is damaged, deteriorating, lost, stolen from a public library or archive (or if the existing format has become obsolete, and if, after reasonable effort by the library/archive, an unused replacement cannot be obtained at a fair price)
  • Make one copy of a short verbal or a graphic work for teacher’s use in preparation for or during a class
The following, however, are expressly prohibited:
  • Copying to avoid purchase
  • Copying music for any kind of performance (but note the emergency exception above)
  • Copying without including a copyright notice
  • Copying to create anthologies or compilations
  • Reproducing materials designed to be consumable (such as workbooks, standardized tests, and answer sheets)
  • Charging students beyond the actual cost involved in making copies as permitted above
Note that just because a work may be out of print does not mean that permission is given to copy and distribute that work. Music educators sometimes would like to procure a copy or copies of an out-of-print copyrighted work for specific purposes. For that reason, the music publishers’ trade associations have prepared a simple form for use in the procurement of out-of-print works (See Appendix XIX).

Use by Educators—Recording

The copyright owner has the exclusive right to reproduce copyrighted works in any form of audio-only recording – limited in the ways outlined previously. A common complication comes up when, in addition to recording music as part of the learning process, music educators may occasionally wish to record student performances and distribute copies of the recording within the community. Here, the teacher needs a mechanical license to do so, but the law somewhat simplifies the process for non-dramatic musical works. As long as the music has been distributed to the U.S. public under the authority of the copyright owner (who essentially gets the right to have the first try), any other person may obtain a compulsory mechanical license. That is, music teachers can pay a royalty, set by law, to the copyright owner. That rate is currently set at 8.00 cents per selection or 1.55 cents per minute of playing time, whichever is greater.

In practice, a music teacher can get such a license by contacting The Harry Fox Agency, Inc., through the web site at www.harryfox.com. There is a button on the site for “limited licensing of 2,500 copies or less” that makes licenses easy to obtain. The process is only for those who wish to make at least 500 copies, however; teachers who want to pay for fewer copies will have to and contact the publisher of the music directly. Three primary sources for this information are:
The first recording of a work and its distribution in recorded form, as well as any recording of a dramatico-musical work such as a musical comedy, requires the consent of the copyright owner.
Use by Educators—Preparing Derivative Works

Making arrangements of a piece of music is an exclusive right of the copyright owner, but under the legal compromises surrounding the law, some things are considered to be reasonable exceptions:
  • Music teachers can edit or simplify purchased, printed copies, provided that the fundamental character of the work is not distorted or the lyrics, if any, are not altered or lyrics added if none exist.
  • Music teachers who get a compulsory license for recording can make a musical arrangement of a work to the extent necessary for their ensemble (actually, “to conform it to the style or manner of interpretation of the performance involved”). This arrangement, however, cannot change the basic melody or fundamental character of the work. This privilege is not meant to extend to “serious” compositions. Anyone wishing to arrange a copyrighted work that falls outside the exceptions noted above must obtain permission from the copyright owner. To simplify this process, there is a standard form for request and grant of permission and worked out an expedited method for obtaining approval by e-mail. (See Appendix XVIII for a sample request form.)
Use by Educators—Performance

Complete information concerning licensing of public performances of copyrighted non-dramatic musical works may be obtained from ASCAP, BMI and SESAC; together, these three organizations work for composers and publishers to handle the performance licenses for the vast majority of musical works. It should be emphasized that a performance of a dramatico-musical work — an opera, a ballet, a musical comedy, etc.— is customarily licensed by the copyright owner of the performing right or his agent. Often, this is the publisher of the music; sometimes, it is either Tams-Witmark Music Library, Inc. or Rodgers & Hammerstein Library.

Although performance is one of the copyright owner’s exclusive rights, the special needs of music educators, and others, are recognized in the fair-use limitations on these. Music educators should take special notice of the very limited nature of these exemptions:

1. The Face-to-Face Exemption: To qualify for this exemption, the performance must be initiated by instructors or pupils and must occur within the context of the “face-to-face teaching activities” of a nonprofit educational institution, in a classroom or similar place devoted to instruction (e.g., a library, studio or workshop). It should be noted that there is no specific restriction, in this case, on the type or amount of a copyrighted work that may be performed. This exemption is limited, and does not apply to:
  • Performances by actors, singers, or instrumentalists brought in from outside the school to put on a program
  • Performances, whatever their cultural value or intellectual appeal, that are given for the recreation or entertainment of any part of their audience
  • Performances in profit-making institutions such as for-profit dance or music studios
  • Performances in an auditorium or stadium during a school assembly, graduation ceremony, class play, or sporting event, where the audience is not confined to the members of a particular class (Only performances “in a classroom or similar place devoted to instruction” fit this provision; performances at shopping malls and the like are certainly not covered)
2. The Distance Education Exemption: The law does permit performance or display of a musical work by a transmission (distance education) in an amount comparable to that which is typically displayed in the course of a live classroom session. Because the law places the onus of developing and implementing a copyright policy on the transmitting body or institute (the school system), this really only applies to teachers who work in schools that have developed the technical and legal structures to deal with this issue. For example, storage and dissemination of the work must be tightly controlled, as must the use of audio-visual oar dramatic-musical works. Also, this exemption does not apply to works developed directly for distance learning or for recordings that were made illegally. At any rate, to come within the distance education exemption, the performance or display must be:
  • Made by, at the direction of, or under the actual supervision of an instructor
  • An integral part of a class session offered as a regular part of the normal teaching of a public school or an accredited nonprofit educational institution
  • Essential to the teaching content of the transmission; and made solely for and, to the extent technologically feasible limited to reception by, students officially enrolled in the course for which the transmission is made
3. Music for Worship Exemption: Performance of non-dramatic literary or musical works or of dramatic-musical works of a religious nature, in the course of services at places of worship or at a religious assembly, is permitted.

4. School Concert Exemption: School ensembles, students, and teachers, can put on a performance of a non-dramatic literary or musical work at a school concert as long as no money changes hands. That is, nobody can gain any direct or indirect commercial advantage; no fee or compensation can be paid to the performers, promoters or organizers; and no admission charge can be levied. (There is even an exception to this: there can be an admission charge, but all of the proceeds must be used only for educational or charitable purposes.) The performance may not take place if the copyright owner objects in writing seven days before the performance.
Use by Educators—Display (i.e., playing it in class)

Any music educator who has purchased or otherwise lawfully acquired a copy of a copyrighted work may display/play it to those present at the place where the copy is located. A teacher, as an agent of the school, can display a copy of music that he or she owns, or a school-owned copy. The legislative compromise surrounding this part of the law indicates that displaying the image of such a copy (of sheet music, for example) by a projector would not be an infringement, whereas making an unauthorized copy—transparency, slide or filmstrip—to project would not be permissible.


Classroom Guidelines with Respect to Copyrighted Music Material

Permissible uses:
  • Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.
  • For academic purposes other than performance, multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section, movement or aria but in no case more than 10% of the whole work. The number of copies shall not exceed one copy per pupil.
  • Printed copies which have been purchased may be edited OR simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist.
  • A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher.
  • A single copy of a sound recording (such as a tape, disc or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyrights of the music itself and not to any copyright that may exist in the sound recording.)
Prohibitions:
  • Copying to create or replace or substitute for anthologies, compilations or collective works.
  • Copying of or from works intended to be “consumable” in the course of study or teaching such as workbooks, exercises, standard tests and answer sheets and like material.
  • Copying for the purpose of performance except as in A-1 on previous page.
  • Copying for the purpose of substituting for the purchase of music except as in A-1 and 2 above.
  • Copying without inclusion of the copyright notice which appears on the printed copy.


Guidelines with Respect to Copyrighted Books and Periodicals

Permissible uses:
  • Single Copying For Teachers
A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:
  • A chapter from a book;
  • An article from a periodical or newspaper;
  • A short story, short essay or short poem, whether or not from a collective work;
  • A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.
  • Multiple Copies For Classroom Use
Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that:
  • The copying meets the tests of brevity and spontaneity as defined below; and,
  • Meets the cumulative effect test as defined below; and,
  • Each copy includes a notice of copyright.
Music Sites with fewer (or no) restrictions on use

The following websites contain links to downloadable music with few or no strings attached; many songs are free, although some are available for a small fee (after which you can use in any way you would like). Remember, buying a song on iTunes, for example, doesn’t mean that you own the song’s copyright. It means that you can personally enjoy it, not duplicate or reproduce it.

If you are unsure whether you can use the music you have in your own personal collection and want to be certain that the music you want to use in class, on your website, or in a student assignment falls into a safe area, consult one of these websites for music that is much less restricted:
http://www.podsafeaudio.com/
http://www.podshow.com/music/
http://audiofeeds.org/
http://www.electromancer.com/podcast_arena.php
http://www.magnatune.com/

Frequently Asked Questions: Music

Must a student purchase a second piece of music for their accompanist?

Accompanists must have original music to play from. Copying a single page to alleviate a difficult page turn can be justified, but copying the entire work is copyright infringement.

During juries and/or recitals, if a student has the original and the faculty wants to follow along with the music for assessment and grading purposes, may copies be made?

Copying may be permissible, but ONLY if permission is granted by the copyright holders. Write to the publisher and explain your situation. Make sure to get the permission in writing. And remember, unauthorized photocopies are copyright infringements.

(If permission is not granted, perhaps students could borrow copies among their peers, from their teachers, or at a music library.)

I'm doing research on a topic related to the effects of music on children and want to use a particular CD. Do I need to purchase a CD for each participant, or can I simply purchase one and make copies?

Copyright for music and recordings is no different than it is for books or plays. Buying only one CD and making copies is a copyright infringement. To use a CD for research purposes, contact the copyright holders to receive permission. More information can be obtained from the Music Publishers Association (http://www.mpa.org/).

Can our band legally sell videotaped copies of its concerts?

A single copy of a videotaped performance of your ensemble can be made to keep on file for reference or review. If you want to make multiple copies and distribute them, either with or without charge, you will need permission of the copyright owners for each piece of music performed on the videotape. You will also need permission from parents to have their children videotaped.

Is a public school district allowed to use recorded music of one of their school ensembles in a publication? The publication may be a TV advertisement or a CD for a business in the area. The music would be purchased according to copyright.

The school must license the music properly with a synchronization license and a mechanical license. Both are available from the Harry Fox Agency (http://www.harryfox.com) If another business is used, make sure that business is responsible for all licensing. Also, be sure to check local law regulations.

If you own a CD and then lose it, is it legal to make a copy of the CD to replace the lost CD?

No. See the list of common questions about videos. If you are talking about a software CD, archival copies of the original can be made, but cannot be transferred to another person without the original. Therefore, making a copy of another CD to replace your lost CD would be a violation of the copyright.

The orchestra I conduct is planning to perform Mozart’s Requiem. Can I photocopy the sheet music and distribute it to the performers?

This is tricky. The Requiem itself is not copyright-protected, since it was composed so long ago, but the sheet music itself may be. If the music you want to use is protected, you will need to get permission from the copyright holder if you do not wish to buy copies of it for everyone. Alternatively, you could look for another edition of the music that is not protected.

Fair Use analysis:
  • Purpose: moderately favorable. The use is being made at a non-profit educational institution but the purpose is primarily entertainment.
  • Nature: moderately unfavorable. The Requiem is a highly creative work.
  • Amount: unfavorable. The whole work is being copied.
  • Effect: unfavorable. The photocopying is replacing sales of the work and numerous copies are being made.The orchestra I conduct is planning to perform Mozart’s Requiem. Do I have to get copyright permission for the performance?
No, no permission is necessary. The use is permitted by §110 of the Copyright Act.



Peer to Peer File Sharing and the Law


Important Notice to all Centre College Network Users

The downloading and sharing of copyrighted files (music, videos, and software) continues to be an issue of great concern. Such actions are illegal without the express permission of the copyright holder. Both the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) have a history of suing individuals who are charged with the downloading and distribution of copyrighted materials using peer-to-peer file sharing software such as Bittorrent, KaZaA, Morpheus, and LimeWire. Such violations of copyright may subject a person to civil liability (with statutory damages ranging from $200 to $150,000 per infringed work) and criminal penalties (with jail terms of up to five years).

Court rulings suggest that Centre College, as an Internet Service Provider (ISP), could be compelled to provide the identities of individuals using the campus network (whether on personally-owned or College-owned computers) who are engaged in unauthorized downloading, uploading, or distribution of copyrighted materials should a lawsuit be brought by a copyright holder such as the RIAA. Recent cases suggest that college students are being specifically targeted by the RIAA. From January through August of 2003 the University of Arizona received 300 official notices of copyright infringement under the Digital Millennium Copyright Act. Students at Princeton , Rensselaer Polytechnic, and Michigan Tech have also been sued.

Accordingly, this notice is posted as a reminder that each constituent of the Centre College community is advised to comply with all applicable laws and to act wisely and judiciously in the use of peer-to-peer file sharing. Further, it is noted that infringement of copyright laws is already defined as a violation of the College's ‘Acceptable Use Policy' (found in the Student Handbook ) governing use of the College computer network. The College regulates Internet bandwidth to give higher priority to those activities that are a critical part of the instructional program and its related administrative functions; lower priorities are in place for recreational use of the bandwidth.

So, what activities are allowed?

You may rip music that you have legally purchased to MP3 format, you may store such songs in your computer or MP3 player for personal use, and you may burn “mix” CD's using your own legally obtained CD's as long as you do not distribute them to others. On the other hand, you may not distribute, upload, download, or transmit music or movies without the express consent of the copyright holder. Furthermore, you should be aware that file-sharing software comes with the default set to share all MP3's stored on your computer, thus making you a distributor even if that was not your intention. Some of these programs also contain spyware that can record computer usage, deliver advertising and other unsolicited files, and allow others access to your files and resources.

Anyone who engages in the downloading and distribution of copyrighted materials is in violation of the College's Acceptable Use Policy , and further in violation of the copyright law. It is best to educate yourself about the law governing digital copyright, and then act wisely.

Additional Information and Web Resources on Music and Copyright


Music Education Copyright Center – http://www.menc.org/information/copyright.html


Music Publishers’ Association Copyright Resource Center – http://www.mpa.org/copyright_resource_center


Music Library Association Copyright Guide – http://www.lib.jmu.edu/org/mla/


Musicians’ Intellectual Law and Resources – http://www.aracnet.com/~schornj/index.shtml


Information on Music and Recording Copyrights (R-VCR, a provider of public-domain music recordings) – http://www.r-vcr.com/music/copyright/


The Music We Perform: An Overview of Royalties, Rentals, and Rights – http://www.mola-inc.org/pdf/MusicWePerform.pdf



    
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