By: T. Scott Gilligan, MTNA General Counsel
Music teachers confront copyright issues on a daily basis. For that reason, MTNA has assembled this Q&A piece on copyright issues that often arise for music teachers. This article addresses copyright law in general, the doctrines of fair use and public domain music, the educational use of copyrighted musical works, and recitals and recordings.
If you have any additional questions on copyright issues, please contact the publisher of the material in question, the Music Publishers Association or a copyright attorney.
A. COPYRIGHT LAW AND MUSIC
What is a copyright? Federal law provides copyright protection in “musical works, including any accompanying words.” Musical works include original compositions, original arrangements, new arrangements of the composition, lyrics, and sound recordings. The rights given to a copyright holder include the exclusive rights to reproduce the copyrighted works (i.e., to make copies), to prepare derivative works based on the copyrighted music, to sell, rent, lend or transfer ownership of copies, and to perform the copyrighted musical work publicly or by means of an audio transmission.
How long does a copyright last? The length of a copyright depends upon when the work was created. For works created after January 1, 1978, copyright protection is extended during the author’s life plus an additional 70 years after the author’s death. If the song was a joint work prepared by two or more authors, the term lasts for 70 years after the death of the last surviving author. If the work was created between 1964 and 1977, the copyright term is 95 years from the publication date of the work. For songs published between 1923 and 1963, if the author applied for a renewal of the copyright, the songs will not enter into the public domain until 95 years from the date they were published. Therefore, the earliest any of these songs would enter into the public domain would be 2018 (95 years from 1923).
What are the penalties for violating the copyright laws? If a music educator were found to be making illegal copies of copyrighted works, they could face fines of $750 to $30,000 (statutory damages) and if the court finds willfulness, up to $150,000 per copyright infringement. If willful infringement for commercial advantage and private financial gain is proven, fines can increase up to $250,000 and/or 5 years imprisonment or both.
I have written several musical compositions. Do I need to file them with the U.S. Copyright Office in order to receive a copyright? No. For musical works that are created after January 1, 1978, the copyright automatically attaches to the musical composition when it is written or recorded for the first time. It is no longer necessary to register the work with the U.S. Copyright Office or to publish the work in order to receive copyright protection under the law.
If a musical work automatically receives copyright protection, why do songwriters register them with the U.S. Copyright Office? Although your musical work receives copyright protection at the time it is written, there are still several important advantages to registration of the work with the U.S. Copyright Office. First and foremost, registration constitutes public notice of your copyright claim. Additionally, if the work is registered within three months of its publication or prior to infringement of the work, you will be entitled to receive statutory damages and attorney’s fees if you successfully sue an infringer. Without registration, you would only be entitled to an award of actual damages and lost profits.
My quartet recorded a song that I wrote. How do I register that with the U.S. Copyright Office? Registration with the U.S. Copyright Office can be done without the assistance of a lawyer. Composers should start by going to the website of the U.S. Copyright Office found at www.copyright.gov. A guide for copyright registration for musical compositions can be found in U.S. Copyright Office Circular 50. If you are registering the underlying musical work, you will use Form PA. If you are registering the sound recording, you will file Form SR. The current fee for registering a sound recording is $45. All of the registration forms are available at the U.S. Copyright Office website.
May I make a new arrangement of copyrighted musical work without violating the copyright? No. Under U.S. Copyright Law, the making of a new arrangement of a copyrighted musical composition would be considered a “derivative work.” A derivative work is work based on or derived from another copyrighted work. As such, the right to make a derivative work is exclusively held by the copyright owner. Therefore, you could only make a new arrangement of a copyrighted work with the permission of the original copyright holder.
If I make a new arrangement of a copyrighted song with the permission of the composer, may I claim a copyright on the new arrangement? If you have been given the permission by the copyright owner of a musical work to make a new arrangement, that new arrangement will receive copyright protection. Again, however, copyright protection would not be extended to the new arrangement unless the permission of the original copyright holder was provided. If requesting permission from the original copyright holder, it is critical to obtain that permission in writing so it can later be documented.
I wrote a song that I want to entitle “California Dreaming.” However, there is already a copyrighted song by that name. May I also use that name for my new song? Yes. Unlike the lyrics in a musical work, the song title is not copyrightable. Therefore, you are free to name your song “California Dreaming” as long as it does not infringe upon the music or lyrics of the original hit by The Mamas and Papas.
May I copy sheet music if it does not have a copyright symbol on it? In most cases, no. While a copyright notice (either in the form of the symbol © or the words “copyright”) was once a requirement of copyright protection, it was made optional in 1989. Therefore, copyright protection attaches to a work even though it does not have a copyright notice on it. Of course, it is important to place copyright notices on musical works to put people on notice that a copyright is claimed. However, the absence of the copyright notice does not indicate that the work has not been copyrighted or that it is in the public domain.
If I purchase a song book, I own it. How come I may not copy pages of the book I own and distribute it? One of the most important rights conveyed by a copyright is the exclusive right to reproduce the musical work. When you purchase a song book, you do not purchase the right to make copies of that song book. That property right remains with the copyright holder. If you copy from the book without the permission of the copyright holder, you infringe the copyright. In other words, you violate the rights of the copyright holder by taking his or her property.
May I copy a work if I list the composer’s name and the copyright symbol on the copy? For the most part, the answer is no. As seen below, there are certain exceptions in which you are allowed to make copies as long as you indicate that the work is copyrighted by someone else. However, in most cases, simply listing the author’s name and indicating that the work is under copyright protection does not allow you to then make copies of the work. You will need the permission of the copyright owner.
What if I distribute the copies for free and do not charge for them. Is that still a violation? Yes. This is one of the common misconceptions under copyright law. If you make copies and give them away for free, you are still infringing the copyright because you are making copies without the permission of the copyright holder. The fact that you gave the copies away versus making a profit on them may reduce damages that the copyright holder collects against you in an infringement lawsuit. Nevertheless, the simple act of copying the work without permission constitutes infringement and entitles the copyright holder to damages.
B. PUBLIC DOMAIN AND FAIR USE
I have heard that if a musical composition is on the Internet, it is in the public domain. Is that true? No. Simply because a work appears on the Internet, does not mean that the author has placed the work in public domain or granted permission for anyone to download the work and make copies of it. Please assume that anything that appears on the Internet is protected by copyright unless you receive explicit permission from the owner to make copies of the work.
Isn’t any musical work composed prior to 1923 in the public domain? Yes, but be careful. It is true that music and lyrics written by an American author and published prior to 1923 are in the public domain in the United States. Once a work is in the public domain, it can be used by everyone. Anything placed in the public domain is a complete abandonment of all rights. Therefore, if a work has been put in public domain because the copyright has expired or because the copyright holder abandons their rights and places the work in public domain, it is available for anyone to use in any way they wish. For example, the classical works of Bach and Beethoven are free for anyone to use. It is important, however, to clearly understand what is in the public domain and what is not. While all of Beethoven’s musical works are in public domain, most of the sheet music of Beethoven’s works would not be in the public domain. That sheet music would, unless created prior to 1923, be protected by copyright. The same is true with sound recordings of Beethoven’s symphonies. The publisher of the sound recording would have copyright protection in it even though the underlying musical works that were performed were in the public domain.
Is there a list of musical works that are in the public domain? There is no definitive list of what music is and is not in the public domain. There are, however, websites that make available sheet music which is in the public domain. One example would be http://ibiblio.org/mutopia which contains a collection of modern editions, arrangements and new music which is in the public domain. All of the musical works on the Mutopia Project may be freely downloaded, printed, copied, distributed, modified, performed or recorded.
Since I am a teacher and am using the music sheets for instructional purposes, isn’t that use exempted from the copyright laws under the doctrine of “fair use?” The doctrine of fair use was created by Congress as an exemption to the U.S. Copyright Laws. The exemption permits limited copying without the permission of the author to allow such things as commentary, criticism, news reporting, research and education. Therefore, for the music educator, there is a limited right of copying without the permission of the copyright holder for educational purposes. As spelled out in the next section regarding educational use of copyrighted music, the fair use exemption for education is limited. It does not allow unlimited copying of copyrighted works by music teachers. Rather, there are very restricted copying rights given to educators under the fair use exemption.
There are a few generalizations regarding the fair use exemption that music instructors should be aware of. First, whenever copying under the fair use exemption, it is important that the copyright notice always appear on the copies. The copy should also be attributed to the author. Copying should never be done for a work that is deemed to be “consumable.” For example, workbooks, standardized tests and answer sheets, and exercise manuals would all be considered to be consumable and not eligible for copying under the fair use doctrine.
C. EDUCATIONAL USE OF COPYRIGHTED MUSIC
May I copy selected pages of sheet music out of several books and assemble my own collection for the private use of my students? No. Each work from a collection or compilation of musical works is protected by copyright. Therefore, you cannot copy any performable unit and place it in your own collection. This is true regardless of the fact that you are not distributing the collection, but only using it privately for your students. Any copying of the performable works would constitute an infringement. Therefore, if you copied 20 separate works and assembled them in an instruction book for your students, you would have committed 20 different acts of copyright infringement.
I have taken excerpts from musical compositions and made copies for my students. Is this permissible? As noted above, you may not copy a performable unit even for educational use. You may, however, copy excerpts of works for educational purposes. Under guidelines approved by several music educational associations, including MTNA, it is suggested that an excerpt not constitute any more than 10% of the whole work. When copying the excerpt, music instructors may make one copy per pupil. Therefore, if you are teaching ten students, you may make ten copies of the excerpt for academic purposes.
I have made copies of several excerpts of musical compositions for educational purposes. Each is less then 10% of the entire work. May I sell these copies to my students? Yes. You may charge the students, but only to recoup your out-of-pocket copying charges. You may not charge to students beyond the costs you paid to copy the materials.
I have two students that are playing a duet. May I make a copy of the sheet music for the second student? No. If two students are to perform a duet of copyrighted music, each would have to purchase sheet music. The same is true for accompanists. It would be a copyright violation to copy sheet music for one of the students
May I make copies of sheet music for page turning purposes? If you are copying only a single page for a difficult page turn, you may do so without permission.
My student forgot his sheet music for a recital. May I make a copy of it? In this case, the fair use doctrine would permit an emergency copy to be made for the purpose of the recital. The copy could be used during the recital as long as it is later replaced by a purchased copy. The same would be true if you are giving a lesson and the student forgets an instruction book for the lesson. You could make an emergency copy of your lesson book for use during the lesson. That copy should later be destroyed and replaced by the purchased lesson book. If the student has lost the lesson book, he would have to repurchase another book to take its place.
If I purchase song books or sheet music, may I re-sell it to my students? If so, may I re-sell it for more than I purchased it? Yes. Music teachers may purchase sheet music and instruction books on a wholesale basis and resell them to students on a retail basis. You may also sell the sheet music and instruction books at a profit. Please note that depending upon the state you are in, the sales to the students may be subject to state sales tax.
D. RECITALS AND RECORDINGS
There are several websites where recordings may be downloaded for a fee. If I pay the fees necessary to download ten recordings on to a CD, may I then sell the CD to a student? No. Websites, such as Napster, require in their license with consumers that the consumer use the downloaded music only for personal use. You would violate your license agreement if you re-sold the recordings to third parties.
Do I need a music license from ASCAP or BMI to hold a piano recital for my students? One of the rights held by a copyright owner of a musical work is the exclusive right to perform the work in public. If music is performed in a public place or if music is transmitted to the public via radio, television, music on hold, or by the Internet, it may only be done with the permission of the copyright holder. That permission is typically obtained by purchasing a music license from the three primary music licensing organizations of ASCAP, BMI and SESAC. Please note that a music license from ASCAP, BMI and SESAC is only required for public performance of music. Music performed in a private residence, during an educational lesson in a private studio, or as part of a private recital involving a selected group of students does not constitute a public performance. Therefore, recitals by a music instructor’s students for a select group of family and friends would not constitute a public performance and would not require a music license.
Is a music license needed for music recitals in schools? No. If no admission fees are charged or if all proceeds from admission fees go the charitable or educational purposes, then musical performances by students or teachers, including performances by student bands and orchestras, may take place without a license or permission.
Would a school band playing at halftime during a high school football game require a license to perform a song? Yes. This type of performance would not be covered by the school concert exemption. Even if no fee was charged to attend the football game, the exemption would not apply because the band’s performance would not be classified as a student concert.
May I record a student’s performance for the purpose of evaluation and instruction? As noted above, music may be performed in a private setting without the permission of the copyright owner. However, when a videotape or audiotape is made of the performance, the music is now not only being performed, but also copied. The taping of the music raises the question as to whether permission of the copyright holder is required since the musical work is being copied. It has been recognized that a music instructor may make a single copy of a recording of performances by students for the purpose of evaluation or rehearsal. That copy may be retained by the teacher. However, no more than a single copy may be made and retained. If multiple copies of the performance are made, the permission of the copyright holder would be required.
May parents videotape their children’s piano recital without a license? Yes, as long as the videotaping is done for private purposes only and is not distributed outside of the immediate family. If a parent were to make copies of the videotape and attempt to sell or distribute them beyond the immediate family, there could be a copyright violation.
May I legally post a video of a student’s recital on YouTube? It will depend upon the music that is played on the video. If the music is in the public domain and the student gives you permission to post the video, then there is no copyright infringement. However, if the music being played is covered by a copyright, then the posting on YouTube without the copyright holder’s permission constitutes an infringement of the copyright holder’s synchronization and broadcasting rights.
With the tremendous growth of YouTube and the posting of numerous amateur videos containing commercial music, YouTube has already faced the infringement issue. Several music publishers have written cease and desist letters to YouTube and to amateurs posting videos to YouTube. Currently, if YouTube receives such a letter, it will remove the video upon the request of the copyright holder.
May a music teacher create an instructional video and post it on YouTube as an educational service? Again, it will depend upon whether or not the materials you are utilizing are covered by copyright. If the music being played in the video is in public domain, there would be no infringement. However, if it is covered by copyright and played without the permission of the copyright holder, there are infringements of the synchronization and broadcasting rights.
What are synchronization rights? A song writer or publisher holding a copyright possesses a bundle of rights. One of those rights is referred to as synchronization rights. Basically, it refers to the right to allow the music to be synchronized with a visual image. For example, when music is used in the background of a television show or film, or placed on a music video, the creator of that video or film must receive the permission of the copyright holder of the music. Typically, that permission is given through a synchronization license agreement.