1. The Music Educators Guide
to Music, Media &
Copyright Law
Dr. James Frankel
FMEA 2008 Conference
January 12, 2008
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
2. All of my session materials are
located on my website:
www.jamesfrankel.com
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
3. Session Overview
• A Brief History of Copyright Law
• How Copyright Law Effects Music
Educators
• Fair Use
• How Copyright Law Effects Our
Students
• Copyright Questions
• Resources
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
4. A Brief History of Copyright Law
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
5. The Statute of Queen Anne
• Adopted in 1710 in
England
• "An Act for the
Encouragement of
Learning, by Vesting the
Copies of Printed Books in
the Authors or Purchasers
of such Copies, during the
Times therein mentioned.”
• Granted a total of 38 years
of protection - 21 years,
with a 14 year renewal
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
6. Copyright Law in the United States
• Copyright Act of 1790 signed into law by George
Washington
• Borrowed heavily from the
Statute of Anne
• The half-page law covered
only books, maps and
charts
• Granted 14 years of
protection - renewable for
an additional 14 years
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
7. • Copyright Act of 1831 included musical
compositions for the first time - public
performance was not covered until 1897
• Extended the initial protection period to 28
years, with the possibility of a 14 year renewal
• Copyright Act of 1909 extends protection to 56
years
• Invention of the phonograph = creation of the
compulsory mechanical license. Composers
receive 2¢ per song/per record
• Sound recordings not yet covered
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
8. The Copyright Act of 1976
• New protections
– A work is copyrighted when fixed in a tangible
form
– Any original work is protected (including sound
recordings)
• New terms
– Life of the author + 50 years
– Increased royalties to 2.75¢ per song
or .5¢ per minute
– Fair Use
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
9. Almost done…
• 1982 - Criminal penalties for copyright
infringement
• 1998 - Sonny Bono Copyright
Extension Act - Life + 70 years
• 1998 - Digital Millennium Copyright
Act - increased protection addressed new technologies
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
10. What does it all mean?
• Copyright literally means the right to copy. Congress
passed the Act to protect the authors both creatively and
financially.
• Musically this means:
– The copyright in the musical composition, i.e. the actual lyrics and notes
on paper. This is usually owned by the songwriter or music
publisher.
– The copyright in the sound recording, i.e. the recording of the performer
singing or playing a given song. This is usually owned by the
record company.
• Titles 17 and 18 of the U.S. Code protect copyright owners
from the unauthorized reproduction, adaptation or
distribution of sound recordings, as well as certain digital
performances to the public.
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
11. How Copyright Law Effects
Music Educators
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
12. What copyright protected
materials do you use?
• Method Books
• Textbooks
• Sheet music including:
•
•
•
•
– Warm-up Exercises
– Band, Orchestra, and Choir repertoire
– Works for Chamber Ensembles & Soloists
Sound Recordings
Video Recordings
Online content (MIDI files, PDFs)
Software
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
13. What can educators do with
these materials?*
How does copyright law apply in
the classroom?
The a lawyer.
Presented at Copyright Law
* I am not Music Educators Guide To the Midwest Band Clinic - Dr. J
14. Copying Printed Materials
• Make a copy of a lost part in an emergency, if it is
replaced with a purchased part in due course
• Make one copy per student of up to 10% of a musical
work for class study as long as that 10% does not
constitute a performable unit
• Make up to three copies to replace a copy that is
damaged, deteriorating, lost, stolen from a public
library or archive
• Make one copy of a short verbal or a graphic work for
teacher’s use in preparation for or during a
class
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
15. Audio Recordings
• Make a single recording of a student performance for study
and for the school’s archive
• Copy songs from an existing CD that you have purchased for
your own use (compilation).
• It is considered fair use to then use that CD in the classroom
for evaluation, rehearsal, exercises, or examinations.
• It is legal to download MIDI files of music that is in the public
domain (unless the specific arrangement is copyrighted) and
burn them on to a CD.
• It is legal to download music when the copyright owner gives
permission or when you utilize a legal music downloading
website.
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
16. Video Recordings
• Display a properly licensed video for
educational purposes
• Videotape a performance for archival
purposes
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
17. What can’t educators do with
these materials?*
The a lawyer.
Presented at Copyright Law
* I am not Music Educators Guide To the Midwest Band Clinic - Dr. J
18. Copying Printed Materials
• Copying to avoid purchase
• Copying music for any kind of performance (but note
the emergency exception above)
• Copying without including a copyright notice
• Copying to create anthologies or compilations
• Reproducing materials designed to be consumable
(such as workbooks, standardized tests, and answer
sheets)
• Charging students beyond the actual cost involved in
making copies as permitted above
• Posting parts online
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
19. Audio Recordings
• Copy accompaniment CDs for student use
• Copy recordings of the concert, even if a fee is not
charged
• Download copyright protected songs from the Internet
without paying for them
• Burn a compilation CD for another person, even if you
paid for the CD’s that you use to make the compilation
• Burn and sell CD’s or videos of a performance without
paying a Mechanical Licensing Fee - 9.1 cents per
recorded work (or 1.75 cents per minute - whichever is
greater) in royalties for each CD sold - even if you are making
less than 500 copies
• Post recordings on a website without written permission
from the Educators
The Music publisher Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
20. Video Recordings
• Display a video licensed for home use
• Record and distribute multiple copies of a
performance without permission from each
publisher and payment of associated royalties
(if video is for sale)
• Posting videos of performances online
without permission
• Televise performances on local access cable
without permission from the publisher
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
22. Rule of Thumb:
If you think you might be
breaking copyright law…
you probably are.
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
23. Fair Use
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
24. “Fair use is any copying of
copyrighted material done for a
limited and "transformative"
purpose such as to comment
upon, criticize or parody a
copyrighted work.”
The Music Educators Guide To the Midwest Band Law CenterJ
Presented at Copyright Law
Stanford University Clinic - Dr.
25. The Four Factors of Fair Use
1. Purpose: Is it educational?
2. Nature: What was the original context of the
copyrighted material being used?
3. Amount: Less than 10% or 30 seconds
4. Effect: Are you taking money out of the copyright
holders hands?
Fair use is often unclear. Congress included the word
transformative in the definition to leave it open to
interpretation.
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
26. How Copyright Law Effects
Our Students
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
27. QuickTime™ and a
TIFF (Uncompressed) decompressor
are needed to see this picture.
Are we raising a
generation of criminals?
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
28. What are we talking about?
and hundreds more! Guide To the Midwest Band Clinic - Dr. J
The Music Educators
Presented at Copyright Law
29. Peer-To-Peer File Sharing Services
allow users to download and upload
various file formats over the Internet.
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
30. Most Peer-To-Peer File Sharing
Services are legal entities, but users
utilize the service illegally.
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
31. Most users download music and then
burn those songs onto a blank CD.
Many rip tracks from CD’s which
they have bought and share them
with everyone.
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
34. Win MX
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
35. A Brief History of
P2P File Sharing
• Made popular in mid-1999 by an 18-year old
Northeastern University dropout named
Shawn Fanning who created Napster.
• It is estimated that there are over 70 million
users subscribed to P2P File Sharing
Services today.
• According to research, over 25% of users are
children between the ages of 12 and 18. 52%
are between the ages of 18 and 29. (Pew
Internet Project)
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
36. • In addition to music, many other file types are
available to users including:
– Software
– Visual images
– Full-length Feature Films
– Viruses
• In April 2000, the Recording Industry Association of
America (RIAA) sued Napster to shut down its
service. Napster loses its case and shuts down in
2001.
• In 2002, the RIAA sued Verizon to obtain customer
information linked with IP addresses (the unique ID#
for each Internet subscriber).
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
37. • In 2003, Verizon was forced to turn over it’s
customer information to the RIAA - lawsuits
quickly followed.
• In April of 2003, Apple launched iTunes - a
legal song-downloading website. In 6 months
users had downloaded 6.5 million songs at 99
cents each. Today, over 1 billion songs have
been downloaded on iTunes.
• In May of 2003, Napster relaunches as a
legal website.
• On September 9, 2003 the RIAA sued a 12year-old New York girl named Brianna
LeHara. They settle out of court for $2,000.
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
38. • Since April of 2004, the RIAA has filed 14,800
lawsuits (averaging nearly 750 a month)
against individual users and universities for
copyright infringement through downloading
music illegally. There are another 17,500
people named in lawsuits yet to be filed.
• Recent research has shown that illegal
downloading has dropped dramatically since
the RIAA began litigation against individual
users.
• P2PLawsuits.com
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
39. Consequences
• Criminal penalties for first-time offenders can
be as high as five years in prison and
$250,000 in fines. Most lawsuits are settled for
between $4,000 and $5,000.
• Civil lawsuits can also be pursued with a
minimum penalty of $750 per downloaded
song up to $150,000 per copyright
infringement.
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
40. A Question Of Ethics
• Each year, the recording industry loses 4.3 billion
dollars, in sales, a trend that began in 1999. There is
recent evidence that this trend is reversing.
• The 10 most popular albums sold 40 million copies
worldwide last year, down 20 million from the year
before - according to the RIAA.
• Most recording artists make only $1.50 per CD.
While many live very comfortable lives we must
remember that they have earned it and therefore
deserve it. If we were in their position, what would
we think? Who makes the rest of the money?
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
41. • Stealing is stealing. Everyone knows that it is
wrong. Why is downloading music alright?
• Is shoplifting a CD different than downloading
it illegally?
• Shouldn’t we support the musicians we
admire by purchasing their music?
• What would that musician do if they knew you
steal their music on a regular basis?
• Just because everyone else is doing it does
not make it alright.
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
42. The Other Side…
• Stanford Law School Professor Lawrence
Lessig’s book Free Culture.
• Where would our culture be without imitation
and outright copying?
• Where did the copyright laws originate?
• Who is being protected by the current US
Copyright Laws?
• What is to become of our culture?
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
43. Copyright Questions
A Community Effort
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
44. Resources
• Copyright: The Complete Guide for Music Educators
by Jay Althouse. Alfred Publishing Co., Van Nuys,
CA. 1997.
• Free Culture : The Nature and Future of Creativity by
Lawrence Lessig. Penguin Books, New York. 2003.
• Digital Copyright by Jessica Litman. Prometheus
Books, Amherst, NY. 2001.
• The Future of Music : Manifesto for the Digital Music
Revolution by Dave Kusek & Gerd Leonhard. Berklee
Press, Boston, MA. 2005.
• www.riaa.com
• www.creativecommons.org
• www.menc.org
The Music Educators Guide To the Midwest Band Clinic - Dr. J
Presented at Copyright Law
