Welcome to part three of our discussion of copyright. This week I’d like to cover the topics of public domain, the doctrine of first sale, and at least get a start on fair use.
First, however, I’d like to make an addendum to last week’s chapter on the benefits of copyright registration. It was pointed out in an excellent comment that I had overlooked an important point, which I’d like to address here.
What I overlooked last week was the fact that the most common type of infringement that a concert music composer today will have to face (any file sharing aside) is an unauthorized use of a recording of the composer’s work by a dance company or non-profit organization, or an unlicensed live performance. Small-potatoes-style infringement.
The most effective way to deal with such a situation – in my opinion – is merely an email or letter from you stating the issue and offering a solution. These types of situations are born out of an appreciation for your work, and most likely an ignorance of the company’s/organization’s obligations when it comes to using copyrighted material. The commenter suggests – and I wholeheartedly agree – that you request a retroactive licensing fee.
Your letter should be polite, yet clear. Explain why you’re writing, be direct, but don’t be an ass. If you keep in mind that these people liked your music enough to use it – quite the compliment! – and that they should be treated with respect as your artistic colleagues (and just as people), you’ll do yourself a service.
Lawyering up in this instance is not only overkill, but likely to earn you a poor reputation in the community. Nobody wants to be known as That Composer Who Sued The Small Dance Company Because They Used His Music Once And Didn’t Make Any Money Anyway.
Unlicensed performances are also best handled by your Performing Rights Organization. Each PRO has a reporting system in place for performances so that there’s a greater likelihood that they will be properly licensed, even after the fact.
Always, always, always act in good faith.
So what happens to works when their copyright term is up? Provided that their term isn’t extended by changes in the law (another discussion for another day), they go into the public domain. The expiration of copyright is – like the existence of copyright itself – intended to “promote the Progress” of the arts. If copyright were indefinite, we wouldn’t have nearly the access to works and scientific writings and findings that we do now. Our artistic and scientific advancement would be seriously curtailed.
It’s public domain that allows us to use poems by Shakespeare or Whitman or Dickinson in our vocal and choral works without having to pay licensing fees or royalties. Because the copyright term on those works has expired, other artists are free to make use of them without compensating the artist (most likely long dead) or his/her estate.
Personally, I prefer working with living poets when I set a text, but there are projects for which I feel that it’s more appropriate – or just plain easier – to use a text in the public domain. All of my choral works use public domain texts, but the bulk of my art songs are on poems by living poets. I have both artistic and financial reasons for this dichotomy. For one in-progress, temporarily-stalled project, I’ve chosen to set 24 public domain texts and collect them into a single album of songs; by setting only public domain texts, I remove any question of what portion of royalties are due to this poet or that out of the sale of the collection. However, I find great artistic satisfaction in setting texts by poets I know, as well as bringing their poetry to a wider audience. Plus, I just really like the idea of helping my friends to earn additional royalties from their works. Big warm fuzzy.
As I mentioned last week, it’s not always easy to know when a work is in the public domain. As a rule, it’s usually – though not always – safe to assume that something written before 1923 is in the public domain. After that point, things start to get more complicated depending on where it was published, whether it was published with or without a copyright notice, and if it complies with various and sundry U.S. Copyright formalities (this last one applies mostly to older works published outside of the U.S.). Here’s an interesting resource from Cornell University’s Copyright Information Center that makes things a little clearer: http://copyright.cornell.edu/resources/publicdomain.cfm
So what happens if you think something is in the public domain, use it, then subsequently learn that it isn’t? Surprisingly, I’m actually dealing with such a situation at this very moment!
A few years ago, I wrote a choral piece believing that the text was completely in the public domain. It turns out that the version of the poem I used was an adaptation of the original by another (living) composer for one of his operas. I hadn’t registered the work either with the Copyright Office or ASCAP, so I haven’t earned any royalties on the piece, and have no registrations to amend. The change from the original is very, very minor (substituting one proper name for another). I could conceivably change the name back to the original, but I rather hate the original. Or, I could find another name to substitute. (Tried it – really hard after becoming so accustomed to it. And I chose the poem partly because I liked the name so much!)
I’ve opted for a third route: I’ve emailed the composer, asking his permission to use the text as I currently have it in the score. And when I say “I’ve emailed the composer,” I mean that I’ve only just emailed him, so I haven’t yet had the chance to receive a response. I’ll be sure to keep you all informed of the progress of the situation, hoping, of course, that this will be an excellent example of the power of writing a friendly, straightforward message that addresses the issue and offers an equitable solution.
Doctrine of First Sale
There are a number of names for the doctrine of first sale: “first sale rule”, “exhaustion rule”, “right of first sale”. So what is it, and how does it affect you?
The first sale rule allows the purchaser of a CD or score (or other individual copy of a copyrighted work) to either sell or lend that copy to another person. So, if you buy the score of a string quartet, you can then resell it. You can also lend it to another person.
You can’t, however, make a copy of it to sell, or to keep when you sell the original. Any copy you may make is, of course, an illegal copy.
It also, in the case of scores/parts (although not CDs or other “phonorecords“), allows the original purchaser to rent his copy to others.
I buy a copy of the score to your most popular piano piece. A pianist I know wants to perform it, but can’t afford to buy it. So (because in this example I’m a bit of a dick), I rent it to him at a lower cost than if he were to buy it. I’ve just – legally – made a profit off of your copyrighted work. I’ve probably not made much, but it’s profit that you’re not legally entitled to. Not a huge deal in the long run, but there are instances when the first sale rule can start to chafe for some. (I’m not entirely sure that I mind this whole thing, but it’s absolutely worth knowing about.)
For example, Choir X buys 60 copies of one of your choral pieces so that they can perform it. A month later, Choir Y wants to perform it as well, so, rather than pay to buy it from you or your publisher, they rent it from Choir X instead. Choir X can rent your piece out to choir after choir, keeping you out of the income loop, and it’s completely within their right to do so. This is a fairly common occurrence, although it seems that more choirs are attempting to buy scores rather than rent them (I’d love to get some statistics on this, or at least feedback from choral staff). It’s also not unheard of in the concert band world. Orchestras do it less because they tend to rent their scores and parts directly from the publisher, and usually don’t buy.
And there’s the interesting point in all of this.
If you fear that copies of your scores will be rented out, and that your sales will suffer for it, your recourse is simply to not sell your scores/parts, but to rent them. Then, the terms of your rental agreement can prohibit the renter from sub-renting to other ensembles. Should you forget that particular provision, then be content in the knowledge that the renter would most likely have to sub-rent the piece at a higher rate than you are charging in order to make the whole thing worth their while, at which point it’s no longer worth the while of the sub-renter, because they can get it cheaper directly from you.
Also a possibility, is the idea of “permanent loan”, which I’ll cover in subsequent chapters on rental agreements.
In terms of practicality, I find the doctrine of first sale to be more academic than useful. But I know that there are composers who do worry about it. There are a lot of factors involved here in the sell vs. rent argument, and, like I said, I’ll cover it in later chapters.
Here’s a biggie. And I surely won’t be able to cover everything in this chapter. So: a quick overview.
Fair use was implemented in order to allow for discussion of copyrighted works, and to further – here’s that phrase again – “promote the Progress” yadda yadda yadda. How is science to further itself if one scientist refuting another’s published claim can’t quote the original in his own paper? How can a book or play be criticized, studied, reviewed, if the original text can’t be quoted? Imagine a TV news story reporting on a concert or musical or gallery opening that couldn’t display any portion of the event in the report – what would be the point?
There are also a LOT of misconceptions about what constitutes the fair use of a copyrighted work: educational use is always fair use; the 15-second limit; the 300-word limit; use by non-profits; the use is non-commercial; etc. There are a lot of instances when the use of some portion of a work is fair use. There are even more that are fuzzy.
My own personal opinion is: when in doubt, ask permission.
That said: it’s late, I’m nearing my 2000 word limit, and I have a mysteriously limping kitten that needs some love.
So let’s meet back here next week to talk in much greater detail on fair use. The week after, we’ll wrap up copyright with a discussion of Copyleft, and then we’ll move on to new territory.
So: what are your thoughts on using public domain texts, tunes, etc in y our work as opposed to more contemporary stuff? Do you have a preference? Let me know in the comments!
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