Music, unlike art, seems to have different considerations when it comes to copyright, because there’s both a unique performance aspect and a “fixed expression” (sheet music) aspect. I have a few questions. I’m interested in factual information, not conjecture. What seems logical isn’t always the law.
Can a person learn and play copyrighted music for his/her own enjoyment without permission? Is this considered “fair use”?
I see lots of buskers on the street or in cafes playing music of recent vintage, most likely without permission of the copyright holder. Is this legal? I’m talking about playing for no charge. Does anyone give ever them a hard time with respect to copyright? Is playing for others for no charge considered “fair use”?
If I notate/transcribe copyrighted music from a performance and share my efforts with others for no compensation (educational purposes), is this fair use and legal? For the purposes of this question, please assume sheet music is unavailable for purchase, or just unavailable.
IANAL, and I don’t have complete answers but here is what I know:
1. Can a person learn and play copyrighted music for his/her own enjoyment without permission? Is this considered “fair use”?
You can play anything you want for your own enjoyment without copyright considerations (but if you learned it from illegally copied sheet music or recordings that might constitute a violation).
*2. I see lots of buskers on the street or in cafes playing music of recent vintage, most likely without permission of the copyright holder. Is this legal? I’m talking about playing for no charge. Does anyone give ever them a hard time with respect to copyright? Is playing for others for no charge considered “fair use”? *
Whether you are paid for it or not doesn’t matter with regard to copyright. However, many establishments pay a fee to organizations like ASCAP as a kind of blanket coverage for performances of copyrighted songs.
3. If I notate/transcribe copyrighted music from a performance and share my efforts with others for no compensation (educational purposes), is this fair use and legal? For the purposes of this question, please assume sheet music is unavailable for purchase, or just unavailable.
I am not sure of the answer to this but I can tell you that the availability of sheet music is irrelevant to the answers.
You can always play music for yourself. Questions do arise when you attempt to make money off of someone else’s music.
Most clubs, for that matter most businesses of any kind that hire musicians, have a kind of blanket license with BMI and/or ASCAP, the licensing organizations for music. They play (annual?) fees that cover all the music played. That way the individual musicians don’t have to worry about separate payments every time they do a song. I doubt that sidewalk or subway strummers do any of this, just as I doubt that anybody hassles them for fees. However, ASCAP and BMI do send around monitors and will sic their lawyers on a non-complying business.
The availability or lack of it for sheet music makes no legal difference at all. Or for anything else under copyright. Copyright is the right of the author/owner to decide what copies should be allowed. No one else can make that decision. Availability isn’t a factor.
Fair use enters again. Back in the ancient era, professors could copy an article and make it available at the library for students to borrow one at a time. This was considered fair use for educational purposes. However, copying an article and handing it out to everyone in the class was not legal because it went beyond fair use.
So the answer to question 3 depends entirely on the specific circumstances.
My brother has a band, and in the unlikely event I marry, I asked him this very ?, thinking about my “1st dance”. He said he wouldn’t need permission from the Pretenders. (it’s OK, he’d be too busy writing the best man speech)
OK, so in that circumstance the royalty has, in effect, been paid for them in advance. If they are recording it (and intend to sell the recording) surely they will have to pay. (If they record just for themselves, or to give to a handful of friends, I would think that is “fair use”).
IANAL, but … Copyright is about the right to distribute - for money or not.
Ths, you can play for your family or friends in a private setting, but when you make a public performance, for money or not, the original author (of the lyrics and the music) has to be compensated. If fred wrote it but Joe recorded it, you pay Fred, not Joe. Plus, the publisher of the music gets a share. If you play recordings, the artist gets a share.
For most public places, like restaurants and concert halls and rooms that hotels rent out for wedding receptions, they would get an ASCAP or such license - otherwise they could be sued jointly, and if the starving artist had no money, the hotel would be on the hook.
Note that groups like ASCAP are notorious for going after places that even play the radio and calling it a “public performance” (the radio is not intended for public performance) and therefore the dentist office or auto repair shop waiting room needs a license. IIRC they even went after the Girl Guides once for campfire singalongs… A shop with a Muzak system pays a license as part of the system, but with Muzak, unlike the radio, the source carefully monitors what they play to avoid problems.
ASCAP IIRC uses statistics and various radio playlists etc. to divvy up the loot.
The courts are not stupid. If the restaurant owner tries to claim “I dodn’t hire him, he just sits in the corner and sings all on his own…” then the judge will see through that and toss the book at you. Still, it is a civil offense - so far - so they will make you pay the license rate, plus penalties, plus an injunction to never do it again.
If you transcribe your own music, it is the same as your own performance. If it is for you - then fine, nobody cares. If you give it to a friend, nobody cares. If you post the music on the internet, it does not matter if it is an MP3 rip, a ringtone, or a homemade sheet music transcription… you are distributing someone else’s copyright product and as such are liable for any civil penalties. Turning it from recorded song to sheet music, it is still recognizable as the same product and copyright.
I’m not sure what the rules are about covers and whether you can record and sell them; presumably you need a license. IIRC many artists have an “exclusive” for the song for a while to prevent competing versions that ride the charts on their coattails, but I don’t know for sure. ANyone enlighten me?
My understanding (and IANAL either) is that about the only real restriction in this regard is that the writer of a song gets to select the first person who records it. After that, as long as an artist is willing to pay the fees, there’s nothing stopping anyone else from also recording it.
Since you start out by saying that you want facts, start with the U.S. copyright statute, Section 106 of the Copyright Act of 1976:
Yes, music has two main rights, a “performance” right (which belongs to the composer/publisher) and the “reproduction” right (which belongs to both the composer/publisher and the recording artist/label).
Yes, you can. It is not fair use, but it simply does not implicate any of the enumerated exclusive rights in Section 106.
If they are publicly performing a work, they are infringing the copyright owner’s right to public performance, regardless of whether there’s a charge or not.
Buskers playing on the street for pennies or nothing are probably not bothered with. But if anyone is playing within the context of a place of business, then the business owner will be expected to pay licensing fees.
A busker playing in public is probably not fair use. But there are plenty of other situations in which playing for others for no charge that might be fair use.
Since you’re asking about fair use, it is appropriate to cite Section 107, which codifies the fair use doctrine in U.S. law:
Maybe. See Section 107.
Making unauthorized copies is a violation, but I don’t see how “learning it from illegally copied sheet music” implicates any of the Section 106 exclusive rights.
Charge is not irrelevant to the question of fair use, but it is just one of several considerations. The four-factor fair use test is a balancing test, so all considerations are taken into account and balanced on a case-by-case basis. Sometimes the question of whether there is a charge is influential; sometimes it isn’t, depending on the remaining circumstances.
They work it out themselves within their membership. There was a period of time in which a lot of composers were dissatisfied with the way that Ascap was doing things, so they formed BMI. These performance rights organizations are not-for-profit entities that answer to their members.
Yes, they have to pay. This is a mechanical/statutory/compulsory license under the Copyright Act.
No, they don’t need permission, but they do have to pay the fees to obtain the statutory license.
Not necessarily. The first thing to look at is whether they’ve implicated any of the exclusive rights under Section 106, before you start thinking about fair use. It’s important not to overuse the term “fair use.” It’s actually a pretty limited doctrine. “Fair use” doesn’t mean the same thing as “personal use.”
Yes, of course you’re right there, I formulated my question without thought. Sometimes music is played but not written down or “published” in sheet format. So it exists as a variety of performances but not as a particular arrangement written on a sheet. That’s what I really meant by “available”. Some folk music is like that. Imagine the following scenario: an ethnomusicologist collected a tune or song on tape by an old lady 20 years ago and it’s been stuck in some archive, and I hear it and want to write it down in sheet music form.
I do know that many people have contended that MIDI versions of songs do not break copyright. Since a MIDI is essentially a computer’s version of sheet music, that would implicate that transcription was allowed.
Of course, people on the Internet also believe that some act under Clinton will allow them to pirate music and games with impunity.
Musical theatre has “grand rights”–The monies that must be paid to the composer and lyricist every time the song is performed. They are not transferable, and are a dandy wayof getting rich. Benny & Bjorn are making more in grand rights from Mamma Mia! then they did from ABBA. If the grand rights are challenged in court, all future productions of the show are halted until the matter is settled. Lynn Thompson kept the rights to RENT tied up in court so long that Larson’s estate finally settled, and then the show bombed overseas.
The composer and lyricist can agree to release the grand rights of the show to things like schools and charities. Andrew Lloyd Webber has done so for most of his shows.
What people don’t understand is how much the details matter.
Under current U.S. law, since 1989, everything is immediately copyright as soon as it it placed into physical form. No notice needs to be put on it. Before 1989 a notice did have to be placed, but if a work wasn’t published different rules might apply. See this page and this page.
What does it mean for a song to be published? I’m not sure, to be honest. I think that if it’s within the past 20 years that a recording would automatically constitute publication. Before then, it might be created but not published.
Even so, sheet music is itself a publication and is copyrighted as soon as it is physically set down. You would own the rights to control any use of the sheet music. What royalties you would have to pay to the songwriter is beyond my expertise.
Specifically, fixed in any tangible (or perceptible) medium. For a musical composition, this can include writing it down on paper (or in a computer file) or recording it in some way.
Actually, it would seem to me that making your own transcription would be a copy or a derivative work, depending on how close it was to the original. Thus, it would still be an infringement. But if you are just keeping it for yourself, I don’t see how it really matters. However, if you were to take your transcription and post it online for other people to use, it seems pretty infringing to me.