Copyright for Music Educators - James Frankel

The Music Educators Guide To Copyright Law

Presented at the Midwest Band Clinic - Dr. James Frankel

The Music Educators Guide to Music, Media &

Copyright Law

Dr. James Frankel

FMEA 2008 ConferenceJanuary 12, 2008



All of my session materials are located on my

website:www.jamesfrankel.com

http://www.jamesfrankel.com/



Session Overview

• A Brief History of Copyright Law• How Copyright Law Effects Music

Educators• Fair Use• How Copyright Law Effects Our

Students• Copyright Questions• Resources



A Brief History of Copyright Law



The Statute of Queen Anne

• Adopted in 1710 in England

• "An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.”

• Granted a total of 38 years of protection - 21 years, with a 14 year renewal



Copyright Law in the United States

• Copyright Act of 1790 - signed into law by George Washington

• Borrowed heavily from the Statute of Anne

• The half-page law covered only books, maps and charts

• Granted 14 years of protection - renewable for an additional 14 years



• Copyright Act of 1831 included musical compositions for the first time - public performance was not covered until 1897

• Extended the initial protection period to 28 years, with the possibility of a 14 year renewal

• Copyright Act of 1909 extends protection to 56 years

• Invention of the phonograph = creation of the compulsory mechanical license. Composers receive 2¢ per song/per record

• Sound recordings not yet covered



The Copyright Act of 1976

• New protections– A work is copyrighted when fixed in a

tangible form– Any original work is protected (including

sound recordings)

• New terms– Life of the author + 50 years– Increased royalties to 2.75¢ per song

or .5¢ per minute– Fair Use



Almost done…

• 1982 - Criminal penalties for copyright infringement

• 1998 - Sonny Bono Copyright Extension Act - Life + 70 years

• 1998 - Digital Millennium Copyright Act - increased protection - addressed new technologies



What does it all mean?

• Copyright literally means the right to copy. Congress passed the Act to protect the authors both creatively and financially.

• Musically this means:– The copyright in the musical composition, i.e. the actual

lyrics and notes on paper. This is usually owned by the songwriter or music publisher.

– The copyright in the sound recording, i.e. the recording of the performer singing or playing a given song. This is usually owned by the record company.

• Titles 17 and 18 of the U.S. Code protect copyright owners from the unauthorized reproduction, adaptation or distribution of sound recordings, as well as certain digital performances to the public.



How Copyright Law Effects Music Educators



What copyright protected materials do you use?• Method Books• Textbooks• Sheet music including:

– Warm-up Exercises– Band, Orchestra, and Choir repertoire– Works for Chamber Ensembles & Soloists

• Sound Recordings• Video Recordings• Online content (MIDI files, PDFs)• Software



What can educators do with these materials?*

How does copyright law apply in the classroom?

* I am not a lawyer.



Copying Printed Materials

• 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 up to three copies to replace a copy that is damaged, deteriorating, lost, stolen from a public library or archive

• Make one copy of a short verbal or a graphic work for teacher’s use in preparation for or during a class



Audio Recordings

• Make a single recording of a student performance for study and for the school’s archive

• Copy songs from an existing CD that you have purchased for your own use (compilation).

• It is considered fair use to then use that CD in the classroom for evaluation, rehearsal, exercises, or examinations.

• It is legal to download MIDI files of music that is in the public domain (unless the specific arrangement is copyrighted) and burn them on to a CD.

• It is legal to download music when the copyright owner gives permission or when you utilize a legal music downloading website.



Video Recordings

• Display a properly licensed video for educational purposes

• Videotape a performance for archival purposes



What can’t educators do with these materials?*

* I am not a lawyer.



Copying Printed Materials

• 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

• Posting parts online



Audio Recordings

• Copy accompaniment CDs for student use• Copy recordings of the concert, even if a fee is not

charged• Download copyright protected songs from the Internet

without paying for them• Burn a compilation CD for another person, even if you

paid for the CD’s that you use to make the compilation• Burn and sell CD’s or videos of a performance without

paying a Mechanical Licensing Fee - 9.1 cents per recorded work (or 1.75 cents per minute - whichever is greater) in royalties for each CD sold - even if you are making less than 500 copies

• Post recordings on a website without written permission from the publisher



Video Recordings

• Display a video licensed for home use• Record and distribute multiple copies of

a performance without permission from each publisher and payment of associated royalties (if video is for sale)

• Posting videos of performances online without permission

• Televise performances on local access cable without permission from the publisher



Arranging, Simplifying, Adapting & Lending



Rule of Thumb:If you think you might be breaking copyright law…

you probably are.



Fair Use



“Fair use is any copying of copyrighted material done

for a limited and "transformative" purpose such as to comment upon,

criticize or parody a copyrighted work.”

Stanford University Law Center



1. Purpose: Is it educational? 2. Nature: What was the original context of the

copyrighted material being used?3. Amount: Less than 10% or 30 seconds4. Effect: Are you taking money out of the

copyright holders hands? Fair use is often unclear. Congress included the

wordtransformative in the definition to leave it open tointerpretation.

The Four Factors of Fair Use



How Copyright Law Effects Our Students



QuickTime™ and aTIFF (Uncompressed) decompressor

are needed to see this picture.

Are we raising a generation of criminals?



What are we talking about?

and hundreds more!



Peer-To-Peer File Sharing Services allow users to download and upload

various file formats over the Internet.



Most Peer-To-Peer File Sharing Services are legal entities, but

users utilize the service illegally.



Most users download music and then burn those songs onto a

blank CD. Many rip tracks from CD’s which

they have bought and share them with everyone.



KaZaA



LimeWire

Ratings



Win MX



A Brief History of P2P File Sharing• Made popular in mid-1999 by an 18-year

old Northeastern University dropout named Shawn Fanning who created Napster.

• It is estimated that there are over 70 million users subscribed to P2P File Sharing Services today.

• According to research, over 25% of users are children between the ages of 12 and 18. 52% are between the ages of 18 and 29. (Pew Internet Project)



• In addition to music, many other file types are available to users including:– Software – Visual images– Full-length Feature Films– Viruses

• In April 2000, the Recording Industry Association of America (RIAA) sued Napster to shut down its service. Napster loses its case and shuts down in 2001.

• In 2002, the RIAA sued Verizon to obtain customer information linked with IP addresses (the unique ID# for each Internet subscriber).



• In 2003, Verizon was forced to turn over it’s customer information to the RIAA - lawsuits quickly followed.

• In April of 2003, Apple launched iTunes - a legal song-downloading website. In 6 months users had downloaded 6.5 million songs at 99 cents each. Today, over 1 billion songs have been downloaded on iTunes.

• In May of 2003, Napster relaunches as a legal website.

• On September 9, 2003 the RIAA sued a 12-year-old New York girl named Brianna LeHara. They settle out of court for $2,000.



• Since April of 2004, the RIAA has filed 14,800 lawsuits (averaging nearly 750 a month) against individual users and universities for copyright infringement through downloading music illegally. There are another 17,500 people named in lawsuits yet to be filed.

• Recent research has shown that illegal downloading has dropped dramatically since the RIAA began litigation against individual users.

• P2PLawsuits.com



Consequences• Criminal penalties for first-time offenders can

be as high as five years in prison and $250,000 in fines. Most lawsuits are settled for between $4,000 and $5,000.

• Civil lawsuits can also be pursued with a minimum penalty of $750 per downloaded song up to $150,000 per copyright infringement.



A Question Of Ethics• Each year, the recording industry loses 4.3 billion dollars, in

sales, a trend that began in 1999. There is recent evidence that this trend is reversing.

• The 10 most popular albums sold 40 million copies worldwide last year, down 20 million from the year before - according to the RIAA.

• Most recording artists make only $1.50 per CD. While many live very comfortable lives we must remember that they have earned it and therefore deserve it. If we were in their position, what would we think? Who makes the rest of the money?



• Stealing is stealing. Everyone knows that it is wrong. Why is downloading music alright?

• Is shoplifting a CD different than downloading it illegally?

• Shouldn’t we support the musicians we admire by purchasing their music?

• What would that musician do if they knew you steal their music on a regular basis?

• Just because everyone else is doing it does not make it alright.



The Other Side…• Stanford Law School Professor Lawrence Lessig’s

book Free Culture.• Where would our culture be without imitation and

outright copying?• Where did the copyright laws originate?• Who is being protected by the current US

Copyright Laws?• What is to become of our culture?



Copyright Questions

A Community Effort



Resources• Copyright: The Complete Guide for Music Educators by

Jay Althouse. Alfred Publishing Co., Van Nuys, CA. 1997.

• Free Culture : The Nature and Future of Creativity by Lawrence Lessig. Penguin Books, New York. 2003.

• Digital Copyright by Jessica Litman. Prometheus Books, Amherst, NY. 2001.

• The Future of Music : Manifesto for the Digital Music Revolution by Dave Kusek & Gerd Leonhard. Berklee Press, Boston, MA. 2005.

• www.riaa.com• www.creativecommons.org• www.menc.org

http://www.creativecommons.org/

http://www.menc.org/



Questions after today?

[email protected]

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Copyright for Music Educators - James Frankel

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