Copyright and music resources
Disclaimer: These guidelines represent the college's best effort at articulating copyright principles. They neither represent general legal advice nor a legal response to a specific situation.
Multiple copyrights may exist since there may be a number of entities contributing to a given rendering of music. Separate copyrights might exist for actual printed music, text or lyrics, and recording/performance of music.
- making copies of printed music
- altering, simplifying, or arranging their musical works
- performing their music publicly
- recording their music
- copying their recordings (in case of performers)
- Copyrights are often signed over to licensing agencies, publishers, etc., who can help ascertain copyright ownership, who help attain necessary performance, recording, copying licenses; and who collect fees and royalties. (See list at end for major agencies.)
Special guidelines relating to educators= use of music that have been endorsed by MENC, NASM, MPA, MTNA
- Emergency copying to replace purchased copies (i.e., for an imminent performance when a replacement copy will be ordered)
- For academic purposes other than performance, excerpts may be copied up to 10% of work and not an entire portion (i.e., a movement). This can be copied for all of the students in the class.
- Simplified or edited versions may be made of purchased print music for educational purposes, as long as they do not change the “fundamental character” of the work
- Single copy of recordings of student performance for evaluation or archival purposes
- Single copy of recording owned by educational institution for purpose of creating aural exercises or exam
- However, they are prohibited from doing the following:
a. Copying to substitute for an anthology
b. Copying consumable parts (i.e., workbook pages)
c. Copying to substitute for purchase
d. Copying without inclusion of copyright notice
e. Copying for performance not connected with fair use
Performance of copyrighted music is permitted in face-to-face (i.e., classroom) instruction as well as performances by school ensembles as long as there is no commercial advantage (i.e., to performers). If admission fee is charged, proceeds must go to educational or charitable purpose. Otherwise, copyright permission is needed.
Copying for convenient page-turning seems to meet the guidelines for fair use (e.g., being of no financial impact on copyright holder; being a limited portion of the score). Statements by both the Music Library Association (US) and Music Publishers Association (UK) support this interpretation. (Note that copying the entirescore is not acceptable fair use.)
Music Library Association (US) statement
Music Publishers Association (UK) statement
Recording of a student’s performance for evaluation is permitted. Otherwise, permission is needed (including recording of school performances).
- Making arrangements or transcriptions of copyrighted music for other than educational purposes is considered derivative. Copyright permission is needed.
- Making arrangement or transcription of public domain work, that arrangement or transcription can now be copyrighted by arranger/transcriber.
If you can obtain the part from a distributor or publisher at a fair price, then it should be purchased. If the part cannot be purchased from a vendor at a fair price then, provided you meet the three requirements outlined in 17 U.S.C. Sec. 108(a), you may invoke section 108(c) and make a photocopy of the missing part to replace the lost part.
Parts needed for an imminent performance may be copied according to the Music Guidelines, as long as replacement parts are then purchased.
The three requirements are that:
- The reproduction or is made "without any purpose of direct or indirect commercial advantage,"
- The library be either open to the public, or, at the least, available to those outside the library's community who are doing specialized research, and
- The reproduction include a copyright notice or, if no copyright notice exists on the original item, an indication that the work may be protected by copyright.
If you can obtain the disc from a distributor or publisher at a fair price then it should be purchased. If it is not possible to purchase the disc from a vendor at a fair price then, provided you meet the three requirements outlined in 17 U.S.C. Sec. 108(a), you may invoke section 108(c) and make a copy of the missing disc to replace the lost one.
The three requirements are that:
- The reproduction or is made "without any purpose of direct or indirect commercial advantage,"
- The library be either open to the public, or, at the least, available to those outside the library's community who are doing specialized research, and
- The reproduction include a copyright notice or, if no copyright notice exists on the original item, an indication that the work may be protected by copyright.
Section 106(4) grants the copyright owner the exclusive right to perform "literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works" in public. Mere ownership of a printed score or a sound recording does not convey the right to perform that work in public.
However, some exceptions to Section 106(4) do exist. In order to accommodate educational and other non-profit uses of music, Section 110 includes ten lengthy limitations to the performing right as defined in Section 106(4). The exemptions most relevant to music libraries and their patrons are:
- Instructional performances. Section 110(1) provides an exemption to use any work in face-to-face instruction in "a classroom or similar place devoted to instruction." The performance must be by "instructors or pupils" in a nonprofit educational institution. Guest lecturers qualify, but outside performers do not.
- Instructional broadcasts. Section 110(2) provides an exemption for instructional broadcasting of non-dramatic works only. The performance must be "a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution" and it must be "directly related and of material assistance to the teaching content" of the program. Section 114(b) deals specifically with public broadcasting of sound recordings: "The exclusive rights of the owner of copyright in a sound recording under clauses (1), (2), and (3) or Section 106 do not apply to sound recordings included in educational television and radio programs (as defined in section 397 of title 47) distributed or transmitted by or through public broadcasting entities (as defined by Section 118(g)): Provided, that copies or phonorecords of said programs are not commercially distributed by or through public broadcasting entities to the general public."
- Religious performances. Section 110(3) makes exempt "performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature . . . in the course of services at a place of worship or other religious assembly." This exemption does not include broadcasts.
- Certain Other Nonprofit Performances. Section 110(4) exempts the performance of a nondramatic literary or musical work (excluding broadcasts) "without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers" if there is no direct or indirect admission charge, or if the proceeds after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance.
Not necessarily. Usually this responsibility falls to the producer of the public presentation. For instance, most universities, public auditoriums, radio stations, orchestras, etc, negotiate “blanket” licenses with the various performing rights agencies. These licenses cover all performances of copyright-protected works controlled by the particular agency.
Messiah University maintains license agreements from 3 agencies - ASCAP, BMI, and SESAC which permit non-dramatic public performance of most copyrighted music. Copies of these agreements are available in the Provost's office. Public performance of music not registered with one of these entities is authorized only with permission of the copyright holder.
Under these licenses it appears that such a performance on campus is covered and no further performance rights need to be sought. According to a representative from ASCAP, under our College and University License Agreement, “If the College or University is the sole presenter or promoter, then the public performance would be covered under the institution’s license."
This sort of use is covered under educational fair use. Further, such use would probably also be covered under the college’s institutional licenses with several music agencies (BMI, ASCAP, SESAC, and CCLI). In all cases, it would be good to include the copyright information.
Check to see if the song is under a license from one of the agencies listed (they are pretty wide-ranging, so chances are it is). If it is check the campus’s contract with them—generally those contracts will allow for such uses provided it is for “in-house” use.
In this case, the enlarged, copied score is not an attempt to preserve a purchased product, but to make it actually
usable for timely practice and is a good work-around here until such time as the rental can be arranged closer to the performance date. Thus, making such a copy would be permissible, though it is advisable to rent the score as the
performance approaches.