WK1: Comment #1 to Thanh Kirby

Thanh,

You would think as long as I have been discussing the subject of “Fair Use” with regards to the music and printing industries, I should be an expert on this subject. The doctrine of fair use is thoroughly stated in sections 107 through 118 of the copyright law (title 17, U. S. Code), however, attempting to discern its actual and/or literal meaning becomes somewhat of a mystery in many cases. I have always maintained a practice of keeping this particular section of the copyright law on hand as a credible reference when I worked in the printing industry and when I was teaching Sound Production I & II. I have always tried to think about the basic fundamentals of the law first. I start by answering the questions to the items within the law that discuss purpose, character of use, nature of the copyrighted work, substantiality, effect, and value. I then focus on the section of the law that cites examples of activities that courts have regarded as fair use. Even with this approach the distinction between fair use can still be unclear.

With regards to photocopying sheet music, I have found that to always be of great concern to music teachers and band directors alike. My printing background has given me tremendous experience in recognizing what falls within the limits of fair use. In most cases, the sheet music in question typically acknowledges the ownership of the work and may also indicate whether there are restrictions on photocopying. With this in mind, it becomes the responsibility of the individual wanting to photocopy the sheet music to carefully examine the music and look for any and all copyright symbols and reproduction notifications. The other aspect of understanding photocopying sheet music falls under the categories of “Derivative Works”, “Distribution”, “Display”, and “Performance”. These standards will help to bring a little more clarity to understanding the ideas of fair use.

Thanh's original Blog Post:

Music Print Copyright: What’s fair use?

Although we have talked a little about copyright previously in this program, I really appreciate the in depth lessons, videos, articles and discussions on copyright.  I think it has helped to clear a lot of questions and uncertainties.  It seems like we should have had this in month 1 or month 2. 

Music stand photo by _e.t retrieved May 4, 2011

from http://www.flickr.com/photos/45688285@N00/119402174/

I think I still have one lingering question regarding music print copyright.  The question has to deal with photocopying printed music for students to use in lieu of the original parts.  Is it legal to make photocopies of printed music for student use?  This would entail making multiple copies of the same part. This discussion is often had within the community of band directors, as we all seem to believe that we are violating the law and will be hauled off to jail should they ever catch us or decide to seek legal compensation.  There also seems to be a wide variety of opinions and anecdotes about what constitutes Fair Use, so I’m interested to get more opinions and to know really what is legal and what is not.

There are several reasons for why band directors would make photocopies:

1.     Student responsibility and treatment of sheet music falls way short of what is needed to adequately preserve the original music.  Printed music by itself can last for many years and be enjoyed by many generations of students, however in the hands of students you may be lucky if it lasts 2 years.  (Yes even with speech after speech about responsibility and proper handling) 

2.     As a band teacher I also want to encourage my students to write in their music to place reminders about tempo changes, key signatures, dynamics etc.  The act of writing helps them in the learning process. However if students receive already written in music then that sort of defeats the purpose, and there is always the possibility of errors from previous students or changes made by the director.

3.     The cost to purchase music for a band or orchestra ranges from $50 - $100 per piece.  Within this piece there generally is not enough parts to provide sheet music for every member of a particular section.  For example you may have 8 clarinet parts in a score but have 20 clarinets in your band.  This is clearly not enough even for students to share. They also need music to take home to practice as well.  At the middle school we generally perform for each group between 12 – 20 pieces in a given year, depending on the group and may have up to 6 different groups.  So you might imagine the cost to purchase and maintain music could reach into the 10s of thousands.  Of course there is no budget to purchase music in most districts (at least in California) so music needs to be purchased through fundraising.  This creates a powerful motivation to want to make copies in order to preserve the original music and protect the investment.

Sheet music store sign photo by lucas.  Retrieved May 4, 2011 

from http://www.flickr.com/photos/lucas_gonze/3920271508/

These reason of course are not valid legal reasons for making photocopies but just helps to enlighten you on the dilemma.  I would like to know definitively if making photocopies of purchased music for student use falls under Fair Use.  I tend to believe that it meets the parameters set by Fair Use, however there are quite a few colleagues who believe that the law is black and white and that massively reproducing copyrighted music is not legal and that those who are doing it are breaking the law.