Electronic copies of music you own

[Todd S. Malicoate]

An open question to the members of the TNFJ:

With school going strong now, there seems to be the usual requests for electronic copies (emails, pdfs, etc.) of various tuba parts, scores, and other copyrighted materials. I am often tempted to comment on such a request, but I have learned through experience that such a comment only invites unwanted PMs and public perception of rudeness. In fact, the number of retaliatory responses to such a comment are directly proportional to the amount of drama portrayed in the sob story which always accompanies the initial request...I propose that this effect should be codified into a scientific principle known as the "TubeNet Emotional Defense Axiom" (or TEDA for short).

Does anyone know if it's intrinsically illegal to make an electronic copy (i.e. scan music into a computer or create a copy on Finale/Sibelius/whatever) that can then be easily transferred to a person who hasn't purchased it? My gut feeling is that even a legal owner can't legally create such a copy, and it would certainly be illegal to transfer such a copy to an unlicensed user. Comments?

[Dean]

To my knowledge, a legal owner indeed CAN make backup copies of the original. That would include digital copies on a hard drive somewhere that would only be printed out in case of need.

That is the case with other forms of media--you can legally make backup copies of your CD's, and you are permitted to rip your CD collection to MP3 format for transfer to an IPOD or some other similar device.

[BVD Press]

I don't know the answer to your question, but maybe you could email someone here:

http://www.freehandsystems.com/" target="_blank

I am sure they have done the research, etc. and might be able to lend some advice.

[Dean E]

An electronic copy is always a copy. Generally, individuals may make backup copies of copyrighted works for limited personal use.

There's a good article concerning copyright information, written by T. Scott Gilligan, Music Teachers National Association (MTNA) General Counsel. The article is titled "MTNA COPYRIGHT GUIDELINES FOR MUSIC TEACHERS."

I would advise bookmarking the article and coming back to it over two or three days to fully understand the points.

Concerning issues of interest to this forum's members, Mr. Gilligan has written about educators. (You may ask yourself, "Who is an educator?")

". . . [T]here are very restricted copying rights given to educators under the fair use exemption."

* * *

". . . [Y]ou may not copy a performable unit even for educational use. You may, however, copy excerpts of works for educational purposes. Under guidelines approved by several music educational associations, including MTNA, it is suggested that an excerpt not constitute any more than 10% of the whole work."

http://www.mtna.org/Resources/Copyright ... fault.aspx" target="_blank" target="_blank

[eupher61]

make a copy for yourself? Sure.

Give a copy, or a digital version, to anyone else? Nope.

[Casey Tucker]

i've always interpreted the rule to mean that if you bought the piece you can make copies/scan onto a computer AS LONG AS you don't sell the copies. same thing goes for a band program. the music directors are supposed to take up old music and destroy as in accordance with copyright laws. in the situation of a band asking for a part is a little shady. to be on the safe side i would say no, but i do think that if they're looking for a specific part and not the whole piece, i would tend to think that they own said piece and have misplaced the part. they own it but they lack that part. the kind part of me would do it but the responsible me would say no. my $.02

-CT

[iiipopes]

It's still the personal use limitation. Here's the reasoning: you bought it, you own it. So you can use your personally made copy to protect your original, because the copyright owner expects you to purchase it, but not necessarily to have to repurchase it.

So even if you simply give away the copy, you have effectively deprived the copyright owner of the next sale down the line to the next guy.

Now, like everything else, there are shady areas. Consider this: Band X purchases March Y with all the original parts. Fine. Band Z likes is so much they purchase it also. Great! Then the schmuck player loses his part, so Band Z, who has actually paid for their copy, calls Band X, who also has actually paid for it originally also, for help. It gets mighty murky mighty quickly, doesn't it?

[TubaSailor]

Back in the stone age when I actually studied intellectual property laws - I seem to remember that the litmus test for the legality of copies was basically: if it was done to avoid purchasing another copy, it was illegal. By that standard, if an individual part was lost, it needed to be replaced with a purchased original. I know that at least one group I play in now, (because of professional legal advise) makes a point of having a purchased original in every folder even if we're actually playing off of marked-up copies. Some copyrights are more stringently enforced than others - there's one asssociation of publishers (mostly church/choir music) that actually prints on every piece of music "any copy is illegal" and we've had a few venues, where we've played as contractors, that have actually asked about any illegal copies, in order to protect themselves since they were charging admission. I'm not an attorney, and it's highly unlikely any of us will wind up in a major copyright lawsuit, but why not just give the composer / arranger / publisher their due and use legal copies if you can? If it's out of print, most publishers will furnish a letter giving permission for copies to be made for a specific group, or if necessary, for only one specific performance, and then you're covered. - I don't think electronic copies by themselves are intrinsically illegal - it's what is done with them if it short changes the publisher or composer.

[eupher61]

TubaSailor NAILED it like he was playing The Ride in Carnegie Hall!

You lose a part--be it the score, the 1st trumpet part, or the contrabass sewer flute part-- you buy the replacement. A band issuing parts is essentially lending, which is distributing.

This seems like a PITA, but composers and arrangers SHOULD be happy. Performers, yep, be glad, because that means you should make a little bit of change IF a recording sells.

Let's not take this sideways to get mired in actual income from royalties, OK?

[Dean]

Back in the stone age when I actually studied intellectual property laws - I seem to remember that the litmus test for the legality of copies was basically: if it was done to avoid purchasing another copy, it was illegal.

This is the entire premise behind what is considered "fair use" in other media. We are allowed to make a copy of legally purchased video and/or audio content. Reason being is that the media will incur "wear-and-tear" which may one day make the media unusable. That is exactly to avoid buying another copy. I believe the argument was that we are buying the content, not the delivery.

[Dan Schultz]

My point was that one should not feel obligated to use the original until it falls apart and buy a new one when that happens. I copy ALL of my music that I can and file the originals. When the copy wears out I make a new one and transfer my notes, if needed.

By the letter of the law, ANY copying of copyrighted material is illegal. It doesn't matter if it's done on a copy machine, by a scanner, or by hand. As far as the publishers are concerned, when the originals are worn out, that's just part of the normal life-cycle of the music. There are a few instances where some publishers consider limited copying as 'fair use'... but... that's strictly up to the individual publisher. Like patent law, it's an attorney's game. And, one way or the other, you're going to lose if the publisher chooses to make a case.

It's about time for the publishers to wake up to the fact that digital duplication is quite easy. They need to take a lesson from Barnhouse. Most everything ever published by Barnhouse is available from archive. The cost??? Well... it might cost a few dollars more but it's no more expensive than maintaining a copy machine additional storage space for files.

[TubaSailor]

TubaTinker has really found the root issue here - it's not so much the legality of the copy, but the defensibility of the copy if you do get sued. The electronic media and easy access to quality photocopy machines has really changed the intellectual property law application. Unfortunately, most intellectual property law is case law - set by precedence rather than by statute, and takes a long time to catch up with changes in technology. It also makes it a bit cloudy as far as being able to predict or even enjoy a level of certainty on how any particular situation will be interpreted in court. It's really not worth it if you're using published music in any kind of profit-making venue. Bottom line is that people do what they do, some get away with it, some don't. We just have to weigh the possible pain against the costs and do what we think is best. I don't think its best to short-change our composers/arrangers/publishers by not paying our fair share for their efforts and creativity. What that fair share is - everyone decides for themselves (or the court will decide for you!) Roll them dice!

[Todd S. Malicoate]

As far as the publishers are concerned, when the originals are worn out, that's just part of the normal life-cycle of the music.

Perhaps they could offer a 10-year, 100,000 mile warranty???

Interesting discussion so far. I still believe (but can't prove) that it's illegal to make a "backup" copy, even for your own use. Just because everyone thinks you can doesn't make it legal. The only reasons I can think of for scanning a piece of music into a computer is to print a replacement in the future or transfer that piece to another computer. The real point of the initial post was that people seem to think that it's ok to just ask someone else for a copy if you lose or "forget" your music.

Bryan, I appreciate the link to freehandsystems...that looks like a neat little device and I might think about one for my accompanying work (page turns are a huge issues sometimes, and this would really help that) if it weren't for two issues:

• 1. The cost is still pretty high
• 2. You can't simply "scan in" or otherwise enter music you already own...you have to purchase music from them specifically for the device. See #1 above.

Wade, I would think that copies of music for the judges at a competition is completely different...those copies are supposed to be destroyed after the competition, anyway. It's not any different than a teacher reading over the shoulder of a student in a lesson, and I'm sure you wouldn't think it proper to require the teacher to purchase a copy just for that. I suppose you could avoid copying scores for the judges and just have them look over the shoulder of the contestant's accompanist with their notepads, but that would be pretty uncomfortable for everyone.

[sailn2ba]

I would have to agree that the intent of copyright is to protect the content, not the piece of of paper. Are there any professional legal opinions on an owner copying his own music for his own convenience? . . Not for profit or to have someone else avoid buying his/her copy.

[tbn.al]

Well, it happened to me in 1985. And the policy here in the MSO has changed since we had a copyright attorney interpret our need for us.

We also had a run in with a publisher and found that the advice of a copyright lawyer was in fact correct. Churches have a horrible reputation in the publishing world unfortuately. Our proceedures with regards church orchestra are as follows. We never hand out the last copy of anything. One copy is held in reserve as a master. All the marked up copies are destroyed after performance. We purchase enough copies so that there is an original in the file for every performer. We just don't use them. The exception is that most of the church orchestra music today gives you the right to make multiple copies from a single original for all players, but the old stuff does not. For example you buy the piece and there is only one Clarinet 1&2 part supplied. You are expected to make a copy for the 2nd player.

Choral music is a bigger problem for the publishers. There are folks who will buy one copy of an octavo and copy it for a 100 voice choir. Although it happens a lot, it is morally wrong and illegal. We sometimes copy music to make up performance books. Our Christmas program will have 20 or more titles form individual pieces and collections alike. The choir director extensively marks originals which are copied used for rehearsal and performance then collected and destroyed. A publisher called our hand on this and we were able to provide proof of original copys for every singer that performed. That was the end of that. This practice is legal.

[Rick Denney]

One thing to remember is that we are talking about civil law. The remedy for the copyright holder has two levels: 1. They can make you stop, and 2. they can make you pay damages.

If there are no damages (in other words, your copy did not deprive the copyright holder of legitimate sales or licenses), then there is nothing for the copyright holder to pursue. In that case, the most they can make you do is stop. They do that with a cease-and-desist letter.

And if you deprived the copyright holder of only one legitimate sale, then it's probably unlikely that pursuing the damages will be worth it for them. But they still might send you a cease-and-desist letter. It becomes an issue with wholesale distribution (such as with Napster) or with rights to public performance, where there were potentially thousands of paying customers.

So, making a copy for my own use is not likely to attract enforcement, especially since they'll never know.

But the moral issue has to be considered, too. I always, always buy the music I use, if and when it is available to be bought. Beyond that, I ain't sayin'.

Rick "thinking publishers deserve compensation, but don't always make it possible to provide it" Denney