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Topic: Copyright laws/ guidelines

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  1. #1

    Arrow Copyright laws/ guidelines

    I must confess, I know diddlysquat about copyright infringement laws so I thought I’d ask a few questions. Maybe some of you know the answers.

    Obviously you can’t copy a melody note per note. But what is “enough” to constitute violation? Four notes, five, six or does it entail chordal sequence along with the notes and not just the melody, or will a similar chordal sequence only, and not melody, evoke infringement.

    I know most contested cases go to court for these reasons so there is no clear cut answer here. But there should be some basic guidelines.

    Take an example, if you sing the Twilight Zone theme, the first 4-notes, it sounds like a broken chord. But if you repeat it and sing 8 notes, most people will say, “That’s the Twilight Zone theme”. So I guess part of the equation is how well known by the population a theme is counts in the equation.

    Randy, when you did “Honey Pie” and Drive my Car from the Beatles, did you get permission, pay royalties to render your arrangements?

    Lots of times I want to describe something I’m talking about with a 5 or 10 second clip from a CD as comparison as I just did in the listening room. Can you do this for training/explanation or not? Or is any fraction of a recorded CD under copyright off limits?

    I probably have more questions, but this is a good start. I’d like to hear about what you know because as I said, I’m completely ignorant of the guidelines.

    Thanks,
    Cass

  2. #2
    Senior Member fastlane's Avatar
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    Re: Copyright laws/ guidelines

    Cass,

    Maybe this is what you want to know.







    Phil

  3. #3

    Re: Copyright laws/ guidelines

    Copy right protects original works of authorship as set forth below.

    17 USC § 102 - Subject matter of copyright: In general
    a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
    (1) literary works;
    (2) musical works, including any accompanying words;
    (3) dramatic works, including any accompanying music;
    (4) pantomimes and choreographic works;
    (5) pictorial, graphic, and sculptural works;
    (6) motion pictures and other audiovisual works;
    (7) sound recordings; and
    (8) architectural works.
    (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

    The copyrights themselves are:

    17 USC § 106 - Exclusive rights in copyrighted works

    Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
    (1) to reproduce the copyrighted work in copies or phonorecords;
    (2) to prepare derivative works based upon the copyrighted work;
    (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
    (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
    (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
    (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

    Infringement of the nature I believe to be contemplated in your post turns on whether the defendant copied the work, as opposed to producing it independently, and, if so whether the defendants work is, from the perspective of the ordinary lay observer, reader, or listener, substantially similar to the plaintiff’s work in it's copyrightable elements. The analysis in practice and application is quite a bit more detailed and torturous but this is probably the essence of it.

  4. #4

    Re: Copyright laws/ guidelines

    Hi, Cass - Here's a rambling response for ya:

    Over the years, like most people, I've had to deal with copyright issues. And also like most people, I've always found the whole thing to be simultaneously confusing but basically simple: Confusing since different laws apply depending on the era when something was first published, and the country in which it was published, but simple because we all instantly own the copyright to anything we create and can invoke the law to protect our work if we choose to.

    Here are a few things according to my understanding:

    --"Fair use" isn't really officially defined. But it's a phrase used, and you'll find all sorts of various interpretations of what that really means. In reality, as I understand it, there is no definitive, legal definition of "fair use." People will say you can use a sentence, you can use a few notes - but nothing like that is actually set out in copyright law. If someone feels that you've borrowed even a measure of their composition and wants to shut you down, they can at least try to do that.

    --I have some works officially copyrighted, with hard copies of works residing in the Library of Congress. But the vast majority of what I've written isn't officially registered. If someone ever distinctly ripped me off, I would rely on the many dated copies which exist on disc, on paper and online, as proof of my ownership.

    --For many decades people have done a quasi-registering thing of using registered mail to send themselves a copy of their work. They leave the package unopened, and that's what they rely on for proof of ownership in case of a dispute. You'll find many opinions on that, yea and nay. Some online sites which claim to give you the real scoop on copyright will say this registered mail thing works, others will say it doesn't.

    --Titles can't be copyrighted.

    --The internet has confused copyright issues immeasurably. We all take it for granted that we can find movies on YouTube, even though all such postings are breaking copyright law. Sometimes we'll find a link to a movie only to see that the video's been removed because it was objected to by the company owning or protecting the copyright.

    --Most things written before sometimes in the 1920's are in the Public Domain. But there are plenty of exceptions. Estates for deceased creators can extend and maintain copyright. Sometimes you'll find music from the 19th Century which you'd think is Public Domain, but it will turn out that it's still covered.

    --In the category of copyright law being different in different countries, here are two cases. The silent film "Metropolis" was never officially registered in the U.S. Over the years many small DVD distributors sold copies of the film here in The States with no worries about copyright infringement. But the movie was protected in Europe, so those same companies couldn't sell their DVDs overseas.

    --Recently I bought the Kindle edition of "The Complete Works of Sir Arthur Conan Doyle." Those kinds of collections are inexpensive, because anybody can produce the Public Domain material. But there are at least two of Doyle's work not in the collection because they're not authorized for copyright-free distribution in America.

    --This message I'm writing is automatically by copyright law, as I said in the opening. I'm simultaneously granting permission for anyone to copy and distribute this message, and that's a given - But it doesn't have to be. Granting permission is just implied, and can be taken for granted. But if I wanted, I could press charges if someone copied this post and put it somewhere else online and I wanted to object.

    "...Randy, when you did “Honey Pie” and Drive my Car from the Beatles, did you get permission, pay royalties to render your arrangements?..."


    No, I didn't. By the letter of the law, those are instances of copyright infringement. The fact that I didn't do those recordings to make money wouldn't matter in a court of law, because that's one thing the copyright law is clear about - Usage of copyrighted material is simply that, whether or not the unauthorized usage was done for profit or not.

    When I was encouraged to find a publisher for my string quartet arrangement of "Drive My Car," I was immediately stymied. I was seeking to make money on an arrangement of a copyrighted work, so I knew I had to first secure permission before submitting the work to anyone. Once I tracked down which entity controlled the rights for arrangements of Beatles songs, I was told, "Sure, you can have your arrangement published after you pay us $1,000."--- That was the end of that idea!

    Like everything else, the ramifications of copyright don't play out in a black and white, definitive way in the real world. It costs a lot of money to bring a lawsuit for copyright infringement. Using the case of my little Beatles take offs - it would be pretty insane for Paul McCartney, or any company representing his work, to drag me into court because I posted unauthorized arrangements of his songs on this Forum. Obviously that would be way out of proportion to the "gravity" of my essentially illegal but harmless usage.

    And here's a capsule version of a story I've told a few times on the Forum. A number of times I've provided virtual orchestra recordings for our local theatre group to use in productions. But every time it's been a hassle, because the composers of the musicals either own their copyrights or share them with their publishers, and the right to reproduce their music by mechanical means isn't granted in the contracts between publishers and theatres. When musicals in the public domain were done at this theatre, no problem. But I had to get special permission in the cases of shows still under copyright - and that was never an easy task. When talking with the publishers, here's the essence of what they told me:

    --They can't officially sanction the use of recordings for their musicals, because that would weaken their legal power. Granting the right to use recordings would have to come directly from the authors/composers - so that's what I did.

    --The publishers are very aware that little theatres all over the country do MIDI versions of musicals, and that if they enforced the copyright for all their clients, they would be shutting down productions every day. But much more important to them is for the shows to be done. That's the bread and butter for both themselves and their clients. They don't want to be in the business of shutting down the very groups that provide them with most of their revenue. SO what they want is to not hear about these copyright infringing activities. They want to be able to turn a blind eye to it.

    But if a production comes to their attention, like someone complains to them about a group dong something illegal with one of their properties, Then they have to wield their authority as representatives of their clients - They have to shut down the show, impose a large fine, bar the group from using any of their catalog for years. Those penalties are of their own choosing, they aren't granted under copyright law - but they're able to enforce those penalties because they're enforcing the rights of their clients to control their creations. The important part of the story is they don't want to do any of that. Publishers basically said to this group, "Don't be stupid and ask us permission to do things we can't allow. We don't want to know!"

    "...Lots of times I want to describe something I’m talking about with a 5 or 10 second clip from a CD as comparison as I just did in the listening room. Can you do this for training/explanation or not? Or is any fraction of a recorded CD under copyright off limits?..."


    It's another instance of copyright law being broken, but at a level where it's in nobody's interest to make an issue of it.

    Randy

  5. #5
    Senior Member Frank D's Avatar
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    Re: Copyright laws/ guidelines

    Hi Cass,

    Difficult subject to navigate!

    I'm not usually a fan of Government websites, but I have to give them their due: The US Copyright website is excellent; if you get a minute, you'll find it quite informative ...

    US COPYRIGHT OFFICE

    Under the "About" section, check out the FAQ section ... covers a bunch.

    They even have a sense of humor in illustrating an important concept ...

    How do I protect my sighting of Elvis?
    Copyright law does not protect sightings. However, copyright law will protect your photo (or other depiction) of your sighting of Elvis. File your claim to copyright online by means of the electronic Copyright Office (eCO). Pay the fee online and attach a copy of your photo. For more information on registering a copyright, see SL-35. No one can lawfully use your photo of your sighting, although someone else may file his own photo of his sighting. Copyright law protects the original photograph, not the subject of the photograph.

    I wouldn't put much credence in the times/amounts listed as "acceptable fair use" in Phil's video posting. As Randy (and the Copyright Office!) mentions, there is no exact formula.

    The Copyright Office does not recognize the "Poor Man's Copyright" (mailing and keeping a sealed version to yourself). I'll add that proving when you created something isn't a guarantee that you would win in court ... in case of a simple song, it's possible for more than one person to create the same work simultaneously. A more elaborate, unique work would be less likely to occur simultaneously.

    If you are entrenched in the music business financially, another good reason to register your works is that you can recoup court costs if you successfully defend your copyright in a court.

    Anything created after 1922 may very well still be copyrighted; anything up to 1922 would not have made it to 1978 when the copyright laws changed dramatically. The old law only allowed a 28 yr. period, renewable once for another 28 yrs = 56 yrs Max. In 1978 it was extended to "Life of Creator + 50 yrs" (and extended again in '98 ... The Sonny Bono Copyright Term Extension Act! ... to "Life + 70 yrs").

    A lot of times when you see a pre-1923 work still copyrighted, it's often an arrangement of the work ... just have to check carefully. Also, there are some older classical works that were denied copyright extensions when they would have been eligible that have recently been granted those extensions. This has created a nightmare for orchestras that used to play these Public Domain works without fee.

    Frank

  6. #6

    Re: Copyright laws/ guidelines

    This is extremely interesting.. I am currently working on a set of arrangements for a show saluting the songs of WW1 and WW2 "on spec", as it were. It`s projected to showcase all or a portion of about 40 numbers in the 90 minute production. The basic concept is choir with orchestra and a narrator who ties the show together. Kind of PBS-y, but it has some merit. People still like those old tunes.

    The fellow I am working with has the idea we can sell it as a "words and music" concert to the local legions etc for a Remembrance Day show, and use full orchestrations recorded via Finale, Garritan and Reaper, then try and sell it wider if it works.

    I was going to simply obtain mechanical licenses for the numbers we ultimately select, and copyright my own arrangements, but because a lot of these songs are not PD, I suddenly foresee a few complication popping up should the show be successful and start to be performed in more than one or two venues using "recorded" orchestras.
    Cheers,

    Kevin F..

    KM Frye- (SOCAN)
    Music Director- Four Seasons Musical Theatre- 2016

    Bella Vista Studios
    Canada

    GPO4, JABB3, Garritan World Inst, REAPER, Roland VS2480 DAW

  7. #7
    Senior Member Frank D's Avatar
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    Re: Copyright laws/ guidelines

    Hi Kevin,

    Sounds like a really neat and fun project! Two issues to be aware of though ...

    1.- If this is performed in concert, you would also need a performance liscense;

    2.- Securing any of these liscenses takes forever! Plan ahead and see what you need early on. If you are doing this for a church, blanket liscenses are available at moderate costs.

    Good luck and I would love to hear how your project turns out!

    Regards,

    Frank

  8. #8

    Re: Copyright laws/ guidelines

    Quote Originally Posted by rbowser- View Post
    Hi, Cass - Here's a rambling response for ya:

    --I have some works officially copyrighted, with hard copies of works residing in the Library of Congress. But the vast majority of what I've written isn't officially registered. If someone ever distinctly ripped me off, I would rely on the many dated copies which exist on disc, on paper and online, as proof of my ownership.

    -Randy
    You may do this at your peril to some extent. One of the elements that must be proved in a claim for infringement is copyright ownership. Registration within 5 years of publication is prima facie evidence of ownership. The registration is easily admissible under the rules of evidence and once admitted ownership is established. The rules of evidence can be vexing and what seems a simple matter of proving ownership by alternate means may prove inadmissible at trial. Also if you are using another method of proving ownership at trial you will be faced with questions of "weight" to be given the evidence by the trier of fact and whether the evidence is credible, also determined by the trier of fact. In other words your testimony concerning ownership has been admitted together with your documents-both of which can represent a huge hurdle-now the trier of fact has to determine (1) Is your testimony to be believed-is it credible; and (2) If so, does it really prove ownership-what weight should it be given. In the four walls of a court room these can be huge questions. This can be obviated by registering the work. In addition registration entitles you to statutory damages and attorneys fees in a successful litigation.

  9. #9

    Re: Copyright laws/ guidelines

    Well, Cass - You asked for it! Copyright is a huge subject, and on this one thread, you can see that people have both a lot of opinions as well as information on the topic.

    New replies:

    Kevin, I'm glad Frank D responded to your post pointing out that you would need a performance license for each of the songs in your concert of WWI and WWII songs. The concept is good, since there's definitely an audience for nostalgic, patriotic songs.

    My suggestion is that you think about loosening up the concept so the concert could also be done in the more casual atmosphere of dinner theatres, nightclubs, churches, as well as standard performance halls. I'm suggesting the material be flexible enough so that it could also be done as a less formal musical revue. Smaller band orchestrations, rather than full classical orchestra, and with a small ensemble of singers, six being the ideal, three couples. Narration could be divided up and adapted for the six singers to do as patter between numbers, with an emphasis on being entertaining, couching the potentially dry history in brief dialogue segments that segue into the songs. Minimal staging to keep the presentation interesting and not static would be in the province of a good director/choreographer. Simply using chairs, the six performers could alternately sit, stand, do simple dance routines, use the chairs as props to stand in for things they may refer to in the script - like cars, tanks, trains- It's all probably in a more theatrical vein than you've been thinking of.

    I just think there would be a way to put it all together so there could be a variety of ways the piece could be presented, giving you a potential for more productions. The more formal concert hall approach may have the most appeal to you, but I think it would be to your advantage if you could keep the material flexible enough so it could also be done in a smalle, stripped down way in a cabaret setting. Think on it, maybe!

    BUT, no matter in what form the show emerges, there is a lot of work to be done and expenditures to be made in order to make the whole thing legit. Obviously potential producers of the concert/revue would need to be completely confident that they won't have to deal with any legal issues when they take up an option to do the show. All your ducks will need to be in a row before shopping it around.

    You're dealing with a lot of copyrighted material. One would think that the cost of performance rights would be more modest than if you were wanting to do a concert of more current material - I guess you'll be finding out!

    Randy

  10. #10
    Senior Member Frank D's Avatar
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    Re: Copyright laws/ guidelines

    Hi again, Kevin ...

    Quote Originally Posted by rbowser- View Post

    ... The concept is good, since there's definitely an audience for nostalgic, patriotic songs.

    My suggestion is that you think about loosening up the concept so the concert could also be done in the more casual atmosphere of dinner theatres, nightclubs, churches, as well as standard performance halls. I'm suggesting the material be flexible enough so that it could also be done as a less formal musical revue. Smaller band orchestrations, rather than full classical orchestra, and with a small ensemble of singers, six being the ideal, three couples. Narration could be divided up and adapted for the six singers to do as patter between numbers, with an emphasis on being entertaining, couching the potentially dry history in brief dialogue segments that segue into the songs. Minimal staging to keep the presentation interesting and not static would be in the province of a good director/choreographer. Simply using chairs, the six performers could alternately sit, stand, do simple dance routines, use the chairs as props to stand in for things they may refer to in the script - like cars, tanks, trains- It's all probably in a more theatrical vein than you've been thinking of.

    Randy
    I think there's tremendous potential in Randy's suggested production/staging notes ... so much so, it immediately brought to mind a very similar recent dinner theater production my wife and I attended, "'S Wonderful". It's a slightly larger production, w/ five couples, but the concept is very similar ...

    " ... A singing and dancing extravaganza, featuring over 42 songs by the beloved Gershwin Brothers ... The melodies flow through five mini-musicals inspired by stories of young love, beginning in 1920s New York City, moving to Paris in the 1930s, Hollywood in the ‘40s, New Orleans in the 1950s and ending in the present day. ‘SWONDERFUL takes you on a nostalgic ride that has been called “a gem for Gershwin lovers, young and old ...”

    This was a charming 'review' type show, further enhanced by having the small pit orchestra on-stage on an Art Deco nightclub bandstand, always a cool thing, especially for this style of show. Like Randy's idea, the couples become the narrators, etc.

    One further note occured to me: The WW I songs should ALL be in the PD ... You probably only need to worry about the post-1922 (WW II) material for licsensing purposes.

    Frank

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