Copyrights:A Short Primer for Music Educators

Copyrights: A Short Primer for Music Educators, Part II
by Paul Jennings, Plank Road Publishing
Reprinted with Permission from Music K-8 Magazine, Vol.7, No.3

Disclaimer: Paul and Teresa Jennings are not copyright lawyers, though they have dealt with the ins and outs of copyrights for 20 years. Then again, even the lawyers don't always agree, so consider this a starting place.

To read Part I, click here.
Plank Road Publishing thanks Dee Truelove and Sonya Ash for their questions, and Emily Crocker of Hal Leonard Publishing for her insight on the copyright perspective of a large, successful music print publisher. These acknowledgements appear in the Music K-8 article.

Laws are often cold, complex, seemingly inflexible things, and in most fields of endeavor it takes lawsuits and other unpleasantries to test their limits. Copyright law in certainly complex, and with the fall of the Soviet Union, it is getting even more so by the day. Luckily, though, most of the concerns of educators have been addressed in what is known as the doctine of Fair Use. It is this concept that governs what you can do with copyrighted material without obtaining permission from the owner of the copyright.

Just copying the government's statutes here would take many pages, and most of them would not relate to music, so we will share the basic concepts and apply them to the situations you face every day. To begin with, there are four factors that are considered when deciding whether an action is "fair use" or copyright infringement:

Purpose and Character of Use-Is the use for commercial gain or for non-profit educational purposes? Is it used for classroom teaching only or for performance?
Nature of the Copyrighted Work-This acknowledges the fact that some works deserve copyright protection more than others but trust us, this is not an area you want to lean on when making a decision.
The Amount Used-How substantial was the portion used in relation to the whole of the work?
Effect on the Market-What is the effect of the use on the potential market value of the work? Was this use done in lieu of the actual purchase of the work? (This is the factor that is most telling in most cases, and it should always be foremost in your mind when you ask questions).

Please Don't Shoot the Messenger-Hey, we already know that when some of you read this article, you will be upset, either at yourself, your school system, your budget, or some bad advice you received from others. We don't enjoy telling you potentially painful things, but since many teachers ask us for answers about copyrights, we know this is a worthwhile topic.

You will also find that in several cases, our answers to teachers' questions will be two-fold, one answer is the case for Music K-8 and similar Plank Road products, and the other is for most other works.

Plan Ahead, Especially Where Performance Is Concerned!-This is the underlying theme to most copyright concerns. In most cases, if you want to do anything out of the ordinary with a copyrighted work, you will need written permission from the owner of that copyright. Don't assume that you will always get that permission or that it will be granted quickly.

So, On To the Questions-If we ran this article past our lawyer, I'm sure that she would tell us to put a long boring disclaimer about here. We'll keep it short, though. We aren't providing legal advice, just our opinion based on two decades of working with copyright and publishers. Our bottom line with all questions is,"If you had to think twice about whether to ask permission, you probably need to ask permission." This is tough, and it certainly cuts down on spontaneity, but it will serve you well. We are answering rather specific questions ehre, so be careful about adapting the responses too freely. Just because one "educational use" is OK, it doesn't mean that all educational uses will be. Also, we won't venture into a discussion of "but will I get caught". There have been only a few lawsuits against schools and churches for copyright infringement, but that should not be the issue. Here, then are the questions:

What if you have a piece of music that is permanently out of print, but you need more copies for your class? Can you photocopy them? In most cases, no, you can't, at least not without permission. Being out of print doesn't change the copyright status, so you must obtain permission in writing to photocopy. Most publishers will grant this permission, and some of them will want some compensation to do so.
Can I audiotape my concerts just as a keepsake? What about videotaping the same? These are two types of rights. The audiotape is clearly alright under fair use rules, assuming that the performance was all legal. The videotape is a little touchier, but assuming that it is just you making a copy for future study and evaluation, that, too, should be OK. The minute you start making copies for sale or for kids to own, you need to obtain permission.
Is it O.K. to make an audiotape of myself playing the accompaniment for an octavo in order to rehearse choreography with my students? Assuming that you own the octavos and use them legally, and assuming that this tape isn't in lieu of a similar tape that you might have purchased, it should be legal. With Music K-8, it is certainly permissible.
Is it O.K. to make an audiotape of myself playing the accompaniment and/or singing so a student can rehearse a solo "with me" just by popping in a tape? Here it gets touchier. The student doesn't own the octavo, so you ar venturing beyond normal fair use. And, if this is O.K. for one student, what about 10? 20? In this case, you really should get permission to be safe. Again, if you are a subscriber to Music K-8, you may make rehearsal tapes for your students.
I have made individual 5-minute cassettes of the tunes on cassettes I am going to study or rehearse. This saves having to constantly cue the tape while my class waits. Is this legal? This is a technique we discussed in our NETWORK section and have recommended for use with Music K-8 recordings (*Music Madness Note: Music K-8 recordings have been made available on CD's since the publication of this article).Provided that you or your school purchased the original recording, and that only you use it, this is permissible fair use.
Many times I like to have my students write additional verses to songs. We sometimes perform them in a program, and I credit the original writer. Is this O.K.? In Music K-8, we often encourage the creativity that comes from writing new verses, though even we would like to see a radically new verse before it is performed. In all other cases, assume that if you are wanting to perform new lyrics (or any other adaptation) for a copyrighted work, you had better get permission in writing. Be prepared to supply a copy of the adaptation when you request permission.
By way of example, I will never forget one arrangement I did of Mancini's Peter Gunn theme. We had a signed contract allowing us to arrange and adapt it for jazz band. It was a very modern arrangement that quickly became popular and sold well. Still, I picked up the phone one day to hear Henry Mancini yelling,"Why did you change my bass line!". Needless to say, some people are very touchy about what you do with their music.
I travel from room to room with a small cart, so I often photocopy songs or lessons from favorite texts as they are often books that are large and hard to tote around. Is this legal as long as I own the original copy? We must admist that this is not something that is directly addressed in fair use statutes, though your use certainly seems to be within the spirit of the law. Again the big test is: do you or your school own the work, and are you just making a single copy, as opposed to multiple copies for your students?
I often use books that do not come with student copies. How can I teach them from such a text without buying 25 copies of a $20 or $30 book? Can I write the lyrics on the chalkboard? Can I teach by rote? O.K., that wins the prize as the toughest question in the bunch. Yes, it is very frustrating that many products are not designed with education in mind. We find no reason that you can't teach the music by rote, but the minute you copy the words or music in any way, you have crossed that magic line. Consequently, you should write to the copyright owner for permission to copy anything for your students. Again, figure that many copyright holders will want some compensation for this privilege.