"Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
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The Founding Fathers of our nation desired to ensure and promote our societal progress by creating incentives and reasons for us to be a creative people. No one of us can doubt the soundness of this motivation. This desire has resulted in the creation of the U.S. Copyright Laws as we know them.
We here at the HSCS Music Department is committed to be in full compliance with the
The following materials are provided for your reference. While we believe the information is accurate, we provide no guarantee or warranty concerning these materials or the interpretation or applicability of the laws to your situation. Copyright Compliance is the responsibility of the user of the creative works of others.
All of the information found for this area can be found at Musicforall.org.
WHAT YOU ARE REQUIRED BY LAW TO DO
Bands or arrangers seeking to arrange music for a marching band must seek "Permission to Arrange" from the company or individual that holds the "print rights" to the music. The "print rights" holder may or may not be the same as the "copyright owner." The copyright owner sometimes publishes its own music or it may grant "print rights" to a music publisher (such as Hal Leonard or Alfred Publishing Co.) to arrange their music for band. Copyright owners often empower the music publisher with the right to grant or deny requests for permission to arrange (such as you are seeking). You will seek permission from either the copyright owner or the music publisher, depending on their contract.
Keep in mind also that any spoken text or visual ideas that you take from another work are also copyrighted and may require permission to use.
REMEMBER: You are required by law to acquire your permission to arrange before you begin your arrangements.
PERMISSION TO ARRANGE GRANTED IS SPECIFIC
Permission to Arrange is usually granted to specific arrangers, for specific performances, by specific bands, and usually for a given year. Furthermore, contracts between copyright holders and music publishers can change from year to year. A license granted in the past does not guarantee that it will automatically be granted this year. Each band should submit its own request as early as possible, prior to selecting its program.
Your approved arrangement is generally the property of the original copyright owner not the property of the band or the arranger. You may not loan or sell your arrangement to another band without first obtaining permission from the "print rights" holder. Additionally, you may not purchase an arrangement from another band or arranger without first acquiring permission from the copyright owner or music publisher. In addition, some companies may require that you forward scores and/or parts as a part of your contract.
WHAT CONSTITUTES A NEW ARRANGEMENT?
In addition to unpublished compositions, new arrangements include:
Please note that ANY SIGNIFICANT ADJUSTMENTS to works already published for concert band, marching band or other instrumentation constitute a "new arrangement" (i.e. cuts made from a published concert band piece "played the same way" but with added drum part is a new arrangement) If you are performing a published marching band arrangement as written you do not have to obtain permission to arrange.
HOW ARE ASCAP, BMI, & SESAC USED?
ASCAP, BMI & SESAC are the three principal organizations that collect performance royalties for composers and publishers in the
Once the "copyright owner" is known, it is your responsibility to contact them to determine who controls the "print rights" (either the copyright owner themselves or their designated music publisher). ASCAP, BMI & SESAC information can be obtained online at the following links and phone numbers:
ASCAP (212.595.3050) BMI (212.586.2000) SESAC (615.320.0055)
MUSIC PUBLISHER INFORMATION
Another good reference is the Music Publishers' Association's Directory of Music Publishers. This list is submitted by the membership of the Music Publishers' Association, the National Music Publishers Association and the Church Music Publishers Association. The list is a comprehensive listing of publishing companies, their parent companies, and full contact information. You can view the list online or request a copy for your files. Their website, mpa.org, also contains links to other companies dealing in copyright and has several helpful documents regarding copyright.
HOW TO OBTAIN PERMISSION
Print rights holders vary in their systems and methodologies for receiving requests for permission to arrange. Generally, however, you can fax, mail, or e-mail a written request for each composition to the "print rights" company. There are various standard "Permission to Arrange" forms available that you can use. In most cases the more information you give a company the more cumbersome the process becomes. Your best option is to simply fill out and submit a "Permission to Arrange" form. Multiple page letters stating what you plan to do with the music, a history of your school/band, etc. generally are not necessary and, in some cases, result in unnecessary charges or denial to you and your school.
It is important to note that Hal Leonard requires that all requests be submitted via their website. You should allow approximately 6 weeks to complete their licensing process.
Whatever you do, submit your request as early as possible, and be sure to keep a copy for your records. Publishing companies receive a large number of requests. We advise that you be diligent by calling after 30 days and making sure that your request has been received and is being processed. If permission is granted, you should receive a signed copy of the "Permission to Arrange" form from the company or a letter granting permission on the company's letterhead. In most cases there will be a fee for the license. The license itself will usually indicate that permission will be granted "once the fee is received." Fees have typically ranged from $50 to $250 per song; however some fees for permission may be substantially higher. Each print right holder has a different policy. Licenses must be signed by you and the publisher.
In addition, you should also exercise care to ensure that you have permission to use any copyrighted visual images in your show. The general rule is, "when in doubt, seek permission."
IS PERMISSION SOMETIMES DENIED? YES!
Some composers or publishers do not allow band arrangements of the material they own. This is sometimes due to contractual agreements or the prerogative of the composer. The list below is an accumulative list of material to date that has been denied in the past or that the publisher has indicated will be denied in the future. Always check with publishers before selecting your program.
The following will not necessarily be denied. However, permission may take longer than average to be granted. You should allow a minimum of 6-8 weeks or longer to license these works.
SPECIAL REQUIREMENTS FOR SPECIFIC WORKS
Recording and distributing video products of performances by participating bands that choose to perform the following works, or works by the following composers, or administered by the following publishers must take additional steps, pay additional fees and/or provide additional permissions in favor of its designees regarding recording, reproduction and distribution of the performance.
Composers (all works):
Composers (specific works):
Publishers (collections in their entirety):
Publishers (specific works):
Other Restricted Compositions:
ADDITIONAL FEES MAY BE REQUIRED
Works written by the following composers and works administered by the following publishers may be recorded and distributed.
| PUBLISHER | COMPOSER(S) |
| Amstel Music, BV | Johan de Meij |
| De Hakse Music Publications, BV | Jan Van der Roost |
| Studio Music Company | Philip Sparke |
| Anglo Music Press | Philip Sparke |
| Stormworks | Stephen Melillo |
These lists may change as we gain more information concerning the wishes of the composers and copyright owners and our ability to license recordings upon terms we deem appropriate.
WHAT IS PUBLIC DOMAIN?
All music written before 1978 became public domain 95 years after its publication date. Since 1978, music written after that year becomes public domain 70 years after the death of the composer. Works in the public domain do not require permission, however certain band arrangements of public domain works (i.e. choral works) may require permission from the music publisher.
NOTICE REGARDING THE COPYRIGHT STATUS OF CERTAIN RUSSIAN COMPOSITIONS AND OTHER FOREIGN WORKS
Please note that the rules for determining the copyright status of a foreign work are different than those for
This may apply to many twentieth-century foreign composers, including Russian composers such as Kabalevsky, Khachaturian, Shostakovich, Prokofiev, Gliere and Goedicke.
Unless informed otherwise by the copyright owner, we suggest assuming that the standard copyright terms apply to all foreign works. The rights to the majority of these compositions by Russian composers listed above are administered by either G. Schirmer, Inc. or Boosey & Hawkes, Inc. and the publishers for most other foreign composers can be determined through a search of the ASCAP/BMI databases.
| Copyright Term and the Public Domain in the | ||
| WORKS PUBLISHED IN THE | ||
| Date of Publication 5 | Conditions 6 | Copyright Term 2 |
| Before 1923 | None | In the public domain |
| 1923 through 1977 | Published without a copyright notice | In the public domain |
| 1978 to | Published without notice, and without subsequent registration | In the public domain |
| 1978 to | Published without notice, but with subsequent registration | 70 years after the death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation 2 |
| 1923 through 1963 | Published with notice but copyright was not renewed 7 | In the public domain |
| 1923 through 1963 | Published with notice and the copyright was renewed 7 | 95 years after publication date 2 |
| 1964 through 1977 | Published with notice | 95 years after publication date 2 |
| 1978 to | Published with notice | 70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation 2 |
| After | None | 70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation 2 |
| UNPUBLISHED WORKS | ||
| Type of Work | Copyright Term | What was in the public domain in the U.S. as of 1 January 2006 2 |
| Unpublished works | Life of the author + 70 years | Works from authors who died before 1936. |
| Unpublished anonymous and pseudonymous works, and works made for hire (corporate authorship) | 120 years from date of creation | Works created before 1886. |
| Unpublished works created before 1978 that were published after 1977 but before 2003 | Life of the author + 70 years or | Nothing. The soonest the works can enter the public domain is |
| Unpublished works created before 1978 that were published after | Life of the author + 70 years | Works of authors who died before 1935. |
| Unpublished works when the death date of the author is not known 4 | 120 years from date of creation 4 | Works created before 1886. 4 |
| WORKS PUBLISHED OUTSIDE THE | ||
| Date of Publication | Conditions | Copyright Term in the |
| Before | None | In the public domain |
| Works Published Abroad Before 1978 in Compliance with US Formalities 8 | ||
| | Published in compliance with US formalities | In the public domain |
| 1923 through 1977 | Published with notice, and still in copyright in its home country as of | 95 years after publication date 9 |
| Works Published Abroad Before 1978 Without Compliance with | ||
| | Published in a language other than English and without subsequent republication with a copyright notice | In the 9th Judicial Circuit, the same as for an unpublished work; in the rest of the |
| 1923 through 1977 | In the public domain in its home country as of | In the public domain |
| 1923 through 1977 | Published in a language other than English, without subsequent republication with a copyright notice, and not in the public domain in its home country as of | In the 9th Judicial Circuit, the same as for an unpublished work; in the rest of the |
| 1923 through 1977 | Published in English, without subsequent republication with a copyright notice, and not in the public domain in its home country as of | 95 years after publication date 9 |
| Works Published Abroad After | ||
| After | Copyright in the work in its home country has not expired by | 70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation |
| Special Cases | ||
| After | Created by a resident of | Not protected by US copyright law because they are not party to international copyright agreements |
| After | Works whose copyright was once owned or administered by the Alien Property Custodian, and whose copyright, if restored, would as of | Not protected by US copyright law |
| 1 This chart was first published in published in Peter B. Hirtle, "Recent Changes To The Copyright Law: Copyright Term Extension," Archival Outlook, January/February 1999. This version is current as of | ||
The Copyright Monster and Music Educators: We CAN All Co-Exist
by Ted Piechocinski, J.D.
Napster. Peer-to-peer file-sharing. RIAA lawsuits against 13 year-olds and grandmothers. Grokster before the
Many music educators have made strides in recognizing copyright issues and taking steps to acquire appropriate clearances and licenses. Unfortunately, there are still many other music educators who pay no heed to copyright concerns, either by feigning ignorance or through simple disregard for the issues and rationalizing with many excuses: "the kids are constantly losing their parts so I copy the originals;" "I don't have time to contact all of those publishers to ask their permission;" "It's OK to copy without permission because we're not making any money from the copies." There is no excuse for ignorance of copyright laws and the responsibilities of music educators to respect and uphold those laws.
It's time to face this mythologized monster head-on and take steps to learn about and co-exist with the world of copyright.
There are three aspects of copyright-related issues that will be explored in this and the following issue of the Bands of America newsletters: 1) copyright basics, 2) recognition of copyright issues; and 3) how to approach music publishers to acquire appropriate licenses.
Copyright Basics
Not intending this article as a scholarly treatise on the law, here are what I consider to be the two most significant provisions of the U.S. Copyright Act:
Those who create (in copyright terms, a work is "created" when it is first set down in tangible form, which includes paper, computers, or any place the work is viewable or retrievable) a musical composition are instantly granted copyright protection for that work. The creator of that work is instantly granted a bundle of exclusive rights to that work including, the right to copy the work, make or authorize derivative works (i.e. arrangements), to initially perform it, and to distribute copies.
Creation creates rights; this part of the equation should be very clear. While creation an d copyright ownership confer exclusive rights, they are immediately tempered by the most misunderstood and abused provision of the Copyright Act, the provision referred to as the "fair use" provision. Despite the exclusive rights conferred upon creators and copyright holders, the fair use provision serves as exceptions to those rights. Does this seem to contradict the "exclusive" rights? Sure it does, but there is a reason: to recognize a fair use despite exclusive rights allows the fruits of those creative efforts to be used in ways that benefit society as a whole. In areas including criticism, research, and teaching, among others, copyrighted materials may be used without explicit permission. But, the fact that teaching and "educational usages" are recognized as a fair use has lent itself to gross abuse and misunderstanding. To think that any usage relating to a school is, therefore, automatically an "educational use" is ludicrous and wrong. The fair use exceptions must be construed carefully, not carelessly.
Fair use for "educational purposes" does not give educators carte blanche to copy and otherwise use copyrighted materials. Educational uses contemplated by the fair use provision include excerpts of copyrighted materials for analytical purposes (such as in music theory or music history courses), research, or purposes of music criticism. "Fair use" never applies to performances or the like. Even if performances can justifiably be linked to a classroom activity (i.e. rehearsals), that is not the kind of classroom use to which fair use applies. Fair use does not apply when the only rationale is simply to avoid purchase. Copying a school-owned CD (or concert band composition, published orchestra arrangement, etc.) for another teacher to use in her classroom is not a fair use even if it is, arguably, an educational use (if educational only because it is music being performed in a school context); it is simply a way for the second teacher to avoid purchase of the copyrighted item. These are not difficult concepts but it is amazing that many teachers look the other way in analyzing these issues. The educational use exception in the fair use provision of the U.S. Copyright Act is simply not as broad as some educators like to pretend it is.
Simple rule #1: Copying (by photocopy, audio duplication, or downloading) of copyrighted material simply to avoid purchase is invariably not a legitimate fair use.
Permissions:
Copyright owners enjoy certain exclusive rights, including the right to determine when, if, and how their works may be copied and under what conditions, if any, derivative works (i.e. arrangements) may be made. Therefore, along with the concept, stated above, that copying to avoid purchase is not an allowable educational (or any other) use, today's music educator must be aware of and take proper steps to acquire proper permissions necessary to use copyrighted materials.
Permissions to perform music you have purchased need not be of great concern. If you have legitimately acquired (i.e. not photocopied from your buddy's music library in a neighboring school) a piece of music and your school district has acquired the typical blanket performance licenses for school music performance through ASCAP and/or BMI (performing rights organizations that collect performance money through licenses and then distribute those revenues to composers, arrangers, and publishers) performance is not a problem. Very rarely do music teachers have to be concerned with performance rights; the exception is in staging musicals, which require separate agreements with agencies such as Music Theater International and others who deal with "grand rights" aspects of staged musicals.
Purchasing a piece of music does not give you the authority to photocopy parts (unless a forward-thinking publisher has included a license giving you explicit permission to make copies). The truth in music print publishing is that music wears out through use. A great piece of music should be played often and, therefore, should wear out from such use and, much like a favorite shirt that we love can simply wear out from being worn with love, there comes a time to replace that shirt with another (of the same kind, of course!). Many music directors rationalize copying of parts because students lose parts too easily and, therefore, the director wants to keep a pristine copy in the files. THIS IS NOT AUTHORIZED; it is a violation of copyright; you do not have permission (unless explicitly given) to make unauthorized photocopies.
Simple rule #2: if you want to duplicate, arrange, or record , a published work, or otherwise alter its fundamental character, you need to get permission from the publisher. Along with this rule goes the following: DO NOT ASSUME ANYTHING; WHEN IN DOUBT ABOUT THE RIGHTS TO A WORK, ASK!
School music program directors often offer CDs and even DVDs to students and their families, often to commemorate a school year and, in some instances, to sell them to the community as fund-raisers. These are great ideas, for sure, in that they are great ways to make money for music programs and to create a legacy of the students' efforts. But, ANYTIME you want to do such projects (other than making one rehearsal tape for analytical or teaching purposes), you must get permission. The most typical kinds of permissions you will need to consider are:
Permission to Arrange:
As a teacher, you are allowed to simplify parts in order for them to be more accessible to students; you could even assign parts for one instrument to another if you need to (for instance, you don't have a bassoon but want to provide a critical line in the tenor saxophone part). These are no problem. But, changing a concert band work for use on the football field often entails significant re-working of the form and instrumentation of the original work. This is more than simply tweaking the work and is, rather, a re-orchestration or arrangement of the original piece. In this case, you must get specific permission from the publisher in order to do this "special" arrangement. Adding percussion parts that are not in the original constitutes a new arrangement of work. Permission is required. Chopping an existing work into segments in order to fit into time constraints can easily alter the fundamental character of a work and, therefore, to avoid violation of the publisher's/copyright-holder's exclusive rights, permission must be sought and acquired.
Bands of America does a tremendous job of making sure that participating bands are performing music that they have the right (permission) to perform at BOA events. Their resource web page has great links and tips to acquire permissions.
Mechanical License:
If you are planning on making multiple copies of your band's performance(s) and either selling the resulting CDs as fund-raisers or are just wanting to give your students mementos of a successful season or school year, YOU MUST TAKE STEPS TO ACQUIRE MECHANICAL LICENSES FOR THESE CDS. A mechanical license gives you permission to record and duplicate performances on CD (and DVD, which we'll discuss next) or other means of audio duplication. Here are the quick tips for acquiring mechanical licenses:
a. Most publishers have agreements with the Harry Fox Agency (HFA, harryfox.com) in which HFA serves as the clearing house for mechanical licenses. However, HFA does not typically deal with requests for less than 500 pressings; therefore, for requests of less than 500 copies (common in school music programs), you must contact the rights holder (usually the publisher) for each song you intend to include on the CD.
b. Currently, there is a set rate for mechanical licenses based on the length of the prospective recording for the CD: for recordings less than five minutes long, the rate per CD pressed, per song, is 8.5¢. If over five minutes in length, the rate is 1.65¢ per minute or portion thereof.
The "good" news in this issue is that, once a commercial recording has been made of any song, permission for anyone else to record that song cannot be denied. This is the concept of "compulsory license" . The bad news is, of course, that it takes time to a) find the proper parties from whom to request mechanical licenses, and b) to give publishers sufficient time to respond regarding your license request.
The answer is (simple as it sounds) to plan ahead; go after the proper permissions/licenses with plenty of time to spare. Publishers are not usually swayed by panic-induced requests brought on by your own procrastination. Be nice to them.
Keep in mind, too, that, even though a piece you want to include on a CD (or DVD) is a public domain work, THAT DOES NOT MEAN THAT THE ARRANGEMENT YOU BOUGHT IS PD; a published arrangement of a public domain composition is still copyrighted by the publisher (to the extent that they have changed/altered the public domain composition) and, therefore, you need to seek permissions for these arrangements, too.
When you contact publishers about these mechanical licenses, feel free to ask them to give you a reduced mechanical rate or, better yet, gratis. Some publishers will be so glad you even sought them out for permission that they may well agree to a gratis license for the usage.
Synchronization License:
Where mechanical licenses deal with audio recordings only, synchronization licenses are required anytime you want to combine music audio with images.
The most typical instance of synchronization usages in school music programs arise when the music director wants to videotape a performance. By putting audio (the music being performed) together with images (the ensemble performing), a need for a synchronization license exists.
As in making an audio recording of a rehearsal for teaching purposes, so to can you videotape (the term is an anachronism since "taping" is often done these days direct to DVDs) a rehearsal. The problem comes when you want to make multiple copies of a taped performance and either give them away or sell them as fund-raisers. As with requests for mechanical licenses, it is up to you to contact publishers or whomever the rights holder might be (start with the publisher), and ask for permission to do the video taping and duplication you desire and ask for a synchronization license.
Unlike the set/statutory rates for mechanical licenses, there are no set fees for synchronization licenses. While fees may therefore vary greatly, it is not inconceivable to see publishers ask for synchronization fees of about 17-25¢ per song, per tape/DVD duplicated. Unlike the provision for compulsory licenses described above, there is no such provision for synchronization licenses. A publisher can simply deny this right with or without any explanation. Again, when you write to a publisher to ask for a synchronization license (most often just referred to as a synch license), you loose nothing by asking for a greatly reduced rate or, even better, a gratis usage. Doing the right thing by seeking out permissions will often win you the praise and respect (not to mention a price break on licenses) from publishers.
Simple rule #3: It does not matter whether or not you will be charging a fee for students or community members to have copies of CDs/DVDs; it is irrelevant; if you want to use something (i.e. music) that is owned by another (i.e. a publisher), ASK FOR PERMISSION.
Internet Considerations: In this very brief foray into the world of copyright for music educators, we must make at least one slight mention of materials found on the Internet. While not addressing peer-to-peer file-sharing issues in this article, it must be understood and remembered that, just because you find information, text, lyrics, music, and images online, that does not mean they are free and yours for the taking. Using a terrific image or artwork reproduction on your programs or as part of your ensemble logo may well be a violation of copyright.
Here's the bottom line: whether found on the Internet, a CD, or on printed music, if the material is copyrighted, it is up to you to seek permissions and/or proper licenses for proposed usages. The continued strength of our music industry, yours and mine, is based on mutual recognition, recognition, respect, and regard for copyright ownership.
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About the author:
Theodore J. Piechocinski, Associate Professor and Director of Music Business at Indiana State University, holds a Juris Doctor degree from the Cleveland-Marshall College of Law, an M.M. in saxophone performance from New Mexico State University, and a B.S. in music education from the University of Missouri-Columbia. He has worked as an Assistant Director of Law for the City of Cleveland (OH) and for many years within the music industry as Senior Vice President of Cherry Lane Music Company, President of MusicExpresso, a revolutionary, online publishing company, Vice President for Marketing and Business Affairs for Ludwig Music Publishing Company, and Director of Business Affairs for The FJH Music Company. In addition, he served three years as instrumental music director at
Links
• MENC.org
• BMI.com
• ASCAP.com
• harryfox.com
• sesac.com
• mpa.org
• copyright.gov
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