Copyright Talk (for Music Profs)

Copyright and Music Presentation for UCM Music Faculty

Overview

! Copyright exists to create a balance between the interests of producers and consumers

! In addition to what is legal, also important to think about what is ethical (and maybe about what is practical)

! All of the material Mike S. circulated is correct, but much of it does not tell the whole story

! However, the Fair Use checklist is excellent

What Does Copyright Mean?

! For sheet music, owner of copyright has the exclusive right to: ! Reproduce it (e.g. photocopy it) ! Make derivative works (e.g. arrange it for, say, marching

band)

! Sell it ! Perform it publicly ! Display it publicly ! Record it

What Does Copyright Mean?

! Copyright also existsseparatelyfor recordings

! For recordings, owner of copyright has the exclusive right to: ! Reproduce it (e.g. photocopy it) ! Make derivative works (e.g. arrange it for, say, marching

band)

! Sell it ! Record it ! Perform it via digital audio transmission

So I Cant Do Anything?!

! Doing any of the aforementioned without permission from the copyright owner is illegal (except in cases of Fair Use, see next slide)

! In practice, all of the exclusive rights are routinely licensedin some cases, licensing is mandated by law

! Much of the licensing that concerns us is already done, at the university level, whew!

! Material in public domain is not included! Generally speaking, if the author died before 1923, go wild. ! But if its a new setting of old material, is back

Whats That Fair Use Thing?

! You can infringe on a copyright at will, as long as it is a Fair Use

! Note: there is no way to know definitively that any particular use is Fair, short of going to court.

! You will read differently, if you research it online.

! Also, many sites online have actual pictures of unicorns and dragons.

Whats That Fair Use Thing? ! If you end up in court, Fair Use outlines four factors the judge/

jury are supposed to consider, to determine if your use is fair: 1. The purpose and character of the use, including whether such

use is of a commercial nature or is for nonprofit educational purposes

2. The nature of the copyrighted work 3. The amount and substantiality of the portion used in relation to

the copyrighted work as a whole 4. The effect of the use on the potential market for or value of the

copyrighted work

! No one factor trumps the others: that fact that its educational IS NOT A PANACEA.

! See the Fair Use Checklist Mike S. distributed: its great!

Not Playing Fair: Licensing Nature of Use Type of License

Copy/distribute/sell sheet music Publishing license (they can say no)

Make derivative works of sheet music Negotiated license (they can say no)

Derivative work of recorded music (e.g. using samples)

Again, negotiated, per sample, with each copyright owner (and they can say no)

Perform it publicly (includes live streaming)

Performing rights license. Generally covered by ASCAP/BMI blanket licenses. UCM handles these. Need to ascertain whether live streaming is included in our blanket licenses.

Display it publicly Negotiated license (they can say no)

Record it Mechanical license. First recording is at the copyright owners discretion, and negotiated. After that, statutory rate applies (but could be lower)

Pair it with video, film, or other media

Synchronization license. Must have sync licenses for both the music and the recording!

Notes from NASM: Live Streaming

! Live Streaming a performance: This is legal. Selling the stream either live, or at a later date is illegal, unless royalties are being paid to the copyright owner.

! If your performance includes copyrighted music, you need a streaming performance license, regardless of whether or not you sell it

! This is available from ASCAP or BMI (99.9% of the time). We may already have this sort of license: question for the General Counsel

! Selling it could cause ASCAP/BMI to renegotiate our licenses

Notes from NASM: YouTube

! YouTube (1): Generally legal, as YouTube pays an annual fee to publishing companies for the right to display videos, just as UCM pays licensing fees annually to ASCAP/BMI.

! You are not supposed to post it to YouTube unless you have the right to do so (i.e. a license)

! Need mechanical license and synchronization license(s)

! YouTube is in the clear: you are not, necessarily

! Almost certainly wont end up in court

Notes from NASM: YouTube

! YouTube (2): Publishers can request that videos be removed, but this isn't terribly common.

! It does happen, and its not exactly uncommon

! More likely, especially for videos using copyright recordings, is they will be found in the Rumblefish data base (or similar)

! Rumblefish = database of commercial recordings

! Searches actual sound of recording as well as tags on it!

! If found, YouTube will put ads on your video and pay the proceeds to the copyright owner(s)

Notes from NASM: YouTube

! YouTube (3) Linking to YouTube to sell videos is illegal, unless royalties are being paid to the copyright owner.

! Yes, but again, commercialization is not the only factor

! Its illegal regardless of the sales/royalties issue

Notes from NASM: Web Audio

! Audio: Non-interactive audio is legal (something that plays in the background on a web site; user has no control to start or stop audio). Interactive audio (player; play buttons' active links; etc.) is illegal, unless royalties are being paid to the copyright owner

! Technically these are both illegal without a license

! In practice, the former is very unlikely to cause a problem (and may be covered under our ASCAP/BMI licenses)

Notes from NASM: Audio Options

! Option 1: Post to YouTube

! Covered above. Totally possible to do legally (and also illegally). Obtain licenses.

! Option 2: Post to SoundCloud, etc.

! Also basically covered above: obtain licenses.

! Remember: if the repertoire is older, or otherwise in the public domain, no license needed for the music (maybe for the recording, however)

What Else?

! Lots of content out there now under Creative Commons licenses. Different kinds, but all automatically grant you right(s) to do stuff thats usually exclusive

! Spotify, iTunes Radio, and the like can be excellent tools for recording lists for class

! So far, recordings we make here are owned by the performers, in general

All Right, What Can I Do?

! You cant photocopy music, at least not complete works or substantial portions of them, especially if its stuff you (or your student) would otherwise have to buy

! You can use IMSLP, have students check materials out, or have them buy their music (good habit to acquire)

! Scanning sheet music for use on a tablet in performance is illegal, but probably/maybe could be justified under Fair Use

All Right, What Can I Do?

! You cant record yourself performing copyrighted music without a mechanical license

! You can do that for Fair Use purposes (e.g. record a rehearsal)

! You can do that with a license, which is easily obtainable ! Note you are supposed to have the license BEFORE you

record it ! No one will know if it happens before or after, except

maybe the NSA

All Right, What Can I Do?

! You cant videorecord yourself performing copyrighted music and put that up on YouTube (note this two steps, and actually also involves a mechanical license)

! You can do step 1 for Fair Use purposes

! You can do both steps with licenses, which are easily obtainable

! You can do both steps without licenses, and almost certainly wont end up in court. Will get taken down, or have ads put on it, with revenue going to others. Or nothing will happen.

Thats Enough for Now

! But Im happy to answer questions, if I can, as long as we all understand: ! Im not an attorney, and definitely not your attorney ! This is an area of the law Ive been studying for a long

time, but Im still not an attorney

! All of this stuff is very much in flux right now (except the photocopying sheet music thingthats very settled)