Legally Getting Orchestral parts

[Todd S. Malicoate]

You are, indeed, violating the first rule of copyright...copying to avoid purchasing. Section 107 of the 1976 Copyright Act specifically prohibits "copying for the purpose of substituting for the purchase of music."

You might want to read this web page for more info. Your own use for graduate school auditions doesn't constitute "fair use," so your 10% argument doesn't hold water. Permissible use is restricted in the above mentioned Act as "academic purposes other than performance."

[a2ba4u]

1. Section 107 of the actual 1976 copyright law says nothing about "copying for the purpose of substituting for the purchase of music." That section simply deals with the definitions for fair use as a limitation on a copyright holder's exclusive rights to a work. The relevant statutory language can be found here: http://www4.law.cornell.edu/uscode/17/u ... -000-.html" target="_blank

2. The language regarding "copying for the purpose of substituting for the purchase of music" comes in the form of guidelines drafted by industry groups at the request of congress to cover situations in the educational field with regard to copyright. These guidelines are just that--guidelines--they are not law. The guidelines are simply a "reasonable [note: not the only] interpretation of the minimum standards of fair use." Further, they are the not scriptural in their scope. "Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill [this section]."

3. We frequently toss around the "10% rule" when debating copyright. Here is the specific guideline: " For academic purposes other than performance, multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section, movement or aria, but in no case more than 10% of the whole work. The number of copies shall not exceed one copy per pupil." I don't think a copy of the tuba part constitutes a "performable unit" in that it is sort of impossible for the tuba player to play all of the parts at once, especially reading just the tuba part. I also don't think that a copy of the tuba part could constitute more than 10% of the work because there are lots of other parts (5 strings, 10-12 woodwinds, ~10 other brass, and 3-4 percussion).

3. One of the prohibitions from the music publishers reads "Copying for the purpose of performance, except as in [emergency situations]." Again, one person with a tuba is going to have a tough time "performing" Shosty 9. Even if you did, an audition setting is hardly a performance. It is called an audition (and not a performance) for a reason.

4. Another prohibition and the one that Todd was referring to: "Copying for the purpose of substituting for the purchase of music, [except two situations]." This clearly has nothing to do with the present situation as it is impossible to buy a published copy of a part to any of the Shostakovitch symphonies (at least the last time I checked). One can call up Luck's (I've done it) and order tuba parts to several well known pieces--Planets, Fountains, etc.--but Shostakovitch isn't an option thanks to the GATT treaty of some years back. Same reason you can't get the Torchinsky Shosty volumes anymore. As "substituting" a copied part for a purchased part is impossible--because one can't actually purchase it--I fail to see how this applies.

5. One should note that the "guidelines" that I am discussing relate only officially to the educational field (even then they are not etched in stone). Fair use is still fair use; it is a conclusion reached by considering the 4 factors and the (intentionally) broad language of section 107. Pronouncing a use fair or not is really not possible as what in fact constitutes fair use is not always as consistent, clear, or applicable to a given factual scenario as we would like, even with the help of the guidelines.

Kyle

[Todd S. Malicoate]

Thanks, Kyle. That was a much more thorough discussion of the relevant laws than my quick (and incorrect) response. Sorry about the incorrect reference to the law...I do try to avoid posting inaccurate facts, and that was a blatant one. Thanks for the correction, and my apologies to any readers for the bad information.

The biggest issue here is whether the individual tuba part is or is not available for purchase. If it is not, as Kyle suggests, then photocopying from the library is fine. If it is, then how is making a copy to avoid purchasing it justifiable? I don't know the answer, but it's not my responsibility to find out...it would be on James at this point to write the publisher of the complete work and inquire.

I do disagree with one of Kyle's points...an audition is a performance in my view, just as competing in a solo/ensemble contest is...and any educator will tell you how careful the people who run those contests are about insuring copyright law is adhered to (check your originals at the door, please).

I would also argue that a complete tuba part is a "performable unit," but that's just my opinion. I'm not sure if there's any precedent in the law to support my position, nor am I willing to spend a great deal of time in the law library searching for one.

Another good question is whether music for personal practice (or even practice for lessons) constitutes academic use...the law seems to be pointed at classroom settings with multiple pupils (i.e. copying a portion of a Brahms symphony for use in a theory class).

This is a good discussion on a very relevant issue to aspiring tuba performers (well done again, James!) Would anyone disagree that going to your school's orchestra library and simply photocopying all the relevant tuba parts is a violation of copyright?

[TexTuba]

This is a good discussion on a very relevant issue to aspiring tuba performers (well done again, James!) Would anyone disagree that going to your school's orchestra library and simply photocopying all the relevant tuba parts is a violation of copyright?

This is indeed a good question. At my school, we are charged fees for the music that is in our library and the music that is in the school's main library. Technically, the fees for the main library go for EVERYTHING in the library, but why would I care about books?

I can go into either place, make a copy, and no one tells me anything. This goes for anything in either place. Do these fees somehow count as the ability to copy? I don't know and I should probably find out.

[SplatterTone]

Not to hijack things here (too much), but could somebody explain why the music publishing bidness seems (as far as I can tell) adamant in its refusal to accept the existence of computers and The Internet. Why is it that the model used by sibeliusmusic.com is not used in some form by all major publishers? It is far more convenient for me to simply pay a few bucks and print off a part from a web site, than any other alternative. It would be very helpful for those in an emergency.

[eupher61]

Copyright law is one big mass of gray. There are lots of rules with wide open clauses to allow or disallow almost anything, depending on the intent of the viewer of that clause (owner or consumer of the music). Aside from the rash of mp3 lawsuits, the "My Sweet Lord" and "Pretty Woman" trials, and a very few other instances, little has actually been done to enforce copyright restrictions, mainly because of that gray area.

Does that mean it's perfectly all right to copy parts, etc? Maybe yes, maybe no. A college audition is an educational purpose, so Fair Use seems to be in play.

BTW, the "Real Book" in all its incarnations is totally illegal. But, it's also the most common music compilation in use. It has never been challenged.

[TubaRay]

Copyright law is one big mass of gray.

Unfortunately, this is so very true. To make things worse, if one asks questions, it is likely they will be told "no," regardless of what is actually legal.

[Brucom]

Many software licenses have a clause allowing for a legal "backup copy" because everyone has to backup his server or his PC. (If you're rotating your backup tapes, you actually have many backup copies in the vault.)

Does the same apply to a single "backup" copy of protected music?
If the CD goes bad, do I have to buy another one, or is a premeditated backup copy for my personal use allowed?
(I assume that the copy will never be sold/shared/distributed.)