The Truth – and the Misconceptions – about US Copyright Laws for Music Teachers

The Bad News First: 

The Music Publishers Association is actively looking for state music organizations which permit (or ignore) the use of illegally photocopied music. We are not the first state being investigated, nor will we be the last. This makes addressing this topic imperative, as much as we may not like the discussion . . . or the results. So here goes . . .

If a piece of music is copyrighted, that means that only the owner of that copyright has the right to make copies. The United States Constitution, Article 1, Section 8, guarantees the creator of a work of art the “exclusive rights” to copy and/or distribute that work. When you purchase one copy of a piece of music (or a recording), you have the permission to own that one copy, period; not to make any additional copies. Copies made for any reason that avoid purchase of the music are technically illegal. The only one who can give you permission to make copies is the owner of the copyright – the publisher, composer, etc.

In other words, the U.S. Copyright Laws state that, if music or lyrics are under copyright protection:

• you CANNOT reproduce the music or lyrics without permission

• you CANNOT make a derivative work or arrangement for public use in any form without permission

(taken from http://www.pdinfo.com/copyright-law/copyright-and-public-domain.php)

[There are other implications for performance and recording, but our focus here is on the print music aspect of this.]

This brings up a number of questions!

• What about extra copies for a judge or accompanist? Illegal (without permission of the copyright owner).

• What about copies if a piece does not include enough parts? Illegal (without permission of the copyright owner).

• What about copies so students don’t write on/lose the originals? Illegal (without permission of the copyright owner).

• What about copies of an out-of-print piece? Illegal (without permission of the copyright owner).

• What about the arrangements we make for my group? Illegal (without permission of the copyright owner).

• What about “imminent performance” or other emergency? (more on that later)

• What about “fair use?” (see below)

The crux of the copyright law is determining “fair use.” Contrary to popular belief, fair use (other than private in-home listening or playing) is very limited. Determining fair use relies on four criteria:

• The purpose or character of the use

• The nature of the work

• The amount of the piece copied/used

• The potential effect of the copying on the market

1. Purpose, i.e., public or private? Is the piece is being prepared for a public performance (as opposed to private in-home leisure use)?

2. Nature of the work, i.e., is it intended for Performance or for Educational Use. This is where many of our misconceptions may begin.

   1. Educational Use refers only to the use of a piece in a classroom setting, e.g. score study, harmonic analysis. 

   2. Performance refers to any music that is performed, whether in the recital hall, the rehearsal hall; whether for profit or not. As soon as you play a piece (rather than study it on paper), by law, it’s considered performance.

3. Amount copied. Generally copying for Educational Use involves less than 10% of a copyrighted piece, or any other length that is not performable as a unit. Copying an entire piece, etude or even movement can never count as Educational Use. 

4. Effect on the market. Any copies made that avoid purchase are illegal, as they have a negative effect on the print music market – on the income of the publisher but also on the arranger and/or composer.

Other things to consider: 

• Registration of copyrights in the U.S. is not required. Any tangible work with the notation © and the date copyrighted (if after 1922) is considered under copyright. Printed music in the Public Domain is not subject to copyright law. Public Domain refers to printed works with a copyright date before 1922 (to use copies of it legally, you must have proof in the way of a tangible copy with a copyright date before 1922). All recorded music is protected by copyright law until 2067; no commercial recordings are considered Public Domain.

• The term “imminent performance” does not exist in the U.S. Copyright law. Contrary to popular belief, the only way to make legal copies for a performance if music is missing or backordered is already on order from a licensed music retailer, and proof of that order and its unavailability (including a letter from the seller or publisher plus a receipt) is on hand before the copies are made. Please note that a letter/receipt from the seller suffices and an additional letter from the publisher is not usually required.

• To make a derivative arrangement of a copyrighted piece, you must have permission of the copyright holder.

• To copy an out-of-print piece, you must have permission of the copyright holder.

• If you make your own recording of a piece, you are covered by what is called a Compulsory Mechanical License. In other words, once a piece is initially recorded, you are able to record it without permission in advance, but you must pay royalties to the copyright holder of 9.1¢ (if the piece is under five minutes long). For under 5,000 copies, this is paid to the publisher; for over 5,000 copies, this is paid to the Harry Fox Agency. This applies to band directors who have students record their own accompaniments for Solo & Ensemble Festival [royalties for SmartMusic accompaniments are already paid by MakeMusic].

• To copy a commercial recording, you must have permission of the owner of the song’s copyright holder as well as the owner of the recording itself. 

• Please note there is a distinction between a public domain piece and an arrangement or recording of that piece. 

An example:

The song “Mary Had a Little Lamb” is public domain. But any copyrighted arrangement of this piece copyrighted after 1922 may not be copied or re-arranged without permission of the copyright holder. Also, any recordings made of this song will not be public domain until at least 2067. 

We’ve been asked several good questions:

Q: If a director has a set of region audition books and all of their kids play out of that book, is that technically legal? 

A: Owning only one copy for more than one child to use is clearly circumventing the potential purchase of other copies, and is thus against the law. 

Q: Could directors check in upon arrival at the audition site and show that they have the books (vs. each kid taking it directly to the room)? Would that be in compliance? 

A: If one really believed the issue concerned only at the audition site you might technically be ok. But the scenario you describe clearly brings up two questions: 1. Are you saying that no photocopies will be on site at all, that only this one book will be brought to the site? (What about students warming up or practicing while waiting to audition?) And 2. If that's really the case, were no photocopies made in individual schools or elsewhere for children to learn the pieces before coming to the site?  I doubt any publisher or MPA official would find either of those believable. 

One way for your MEA to ensure compliance is for each child to have a hard copy in his/her hand upon entering the site, upon check-in. This is what NYSSMA and several other state organizations do (The presence of any photocopy on site at NYSSMA events results in immediate disqualification). Obviously people will still find ways to circumvent the law, but this may be the best option to protect your MEA from liability.

Wow, this is scary! What am I going to do??

This information has huge – and, yes, scary – implications for the band director (or any music teacher who teaches a performance ensemble). But we can all work through this together, without bankrupting our programs. 

First, while this sounds altruistic, please don’t focus on “How much can I get away with, without getting caught?” Focus instead on "How can we as teachers exemplify respect for a law as opposed to flagrantly breaking it, if that is what we want our students to do in real life when they leave band class - not only with regard to copyright, but with regard to all of life?" Set an example for your students by complying with federal laws and teaching them that music is not free – it has a value – and that “doing the right thing” is always the right thing. That’s a lesson your students will take with them long beyond your classrooms. 

The fines for possessing illegal copies in a band room or at an MEA-sanctioned event are very high (much higher than the cost of ordering extra parts or obtaining proper licensing). They can easily add up to tens of thousands of dollars. And both the MEA and the school involved can be fined. In contrast, prices for extra parts for most pieces you’d use for Concert Performance Assessment are only $1-$3 each, and extra scores vary from $6-$10. Yes, that adds up too. But talk to your local print music dealer about perhaps an extra discount if you order all your extra parts at the same time you order the piece itself.  Local dealers who give 10-20% off on print music can provide you with your parts, score and extra parts for about the same price many of you are currently paying to order online, where you pay full price plus shipping. 

For auditions, why not have each child auditioning buy a book? Many of our books cost less than $10. And these are all great books for a child to have in his/her library anyway. Most cost no more than Standard/Tradition of Excellence - and we don't copy those en masse. What is done at your school for the few students who really cannot afford a method book? Do that same thing for audition books too.

For Solo & Ensemble, encourage your students to purchase collections they can use more than one year to save money. Or encourage them to choose a piece that’s already in your library, so they only have to order one more copy. If a student can use a school copy as the judges' copy, there would be no need for any photocopying or purchasing of duplicate copies. Again, many local sheet music dealers give a discount on Solo & Ensemble music, especially if more than one copy needs to be purchased. Having to buy a book might help some students get started practicing earlier and take the process more seriously. It would give more credibility to the event- and especially for Solo and Ensemble - prevent the last minute cramming/sight reading that we’ve all seen. 

If your students record their own accompaniments, you can be free of any legal culpability by sending a dime (literally, ten cents) to the publisher of the piece with a note stating the name of the piece, date and purpose of recording and what the recording will be used for. While it’s true few publishers will pursue legal action for a dime, doing this will prevent you from any repercussions. Again, SmartMusic accompaniments are already licensed for use and can be stored/saved with your settings and be used for Solo & Ensemble Festival without further action.

How do I apply for permission to rearrange a piece, or to copy an out of print piece? 

You can usually get all the information (and licenses) you need from your local print music dealer. They should be happy to help. Ask if they are a member of RPMDA (the Retail Print Music Dealers Association); if so, they have tons of copyright information at hand they can share. 

You can also find many forms, and much more information about print music copyrights, on www.mpa.org. Or you can e-mail the Music Publishers Association at admin@mpa.org. 

You can contact the licensing department at the publisher who owns the copyright of the music in question. Please be prepared to give them the title, composer/arranger, and copyright date/holder of your music, along with the intended use(s) and date(s) of use.  Please be aware that the copyright owner and the distributor are two different entities, e.g. Southern Music publications are distributed by Hal Leonard, but the copyrights are still administered by Lauren Keiser Music, which owns Southern Music. Your local print music dealer can help you sort this out, too.