Put five music educators in a room and ask them what the current copyright laws are with regard to copying music and you will get five different opinions. While not intended to be confusing, Title 17 of the United States Code (our current copyright laws) tries to protect the rights of the authors, composers, performers and artists who create the books, music, recordings or artwork.
The law attempts to make sure these individuals are compensated properly for their efforts, while still making the results of their efforts available and accessible to the public. And then that same set of laws allows for the reasonable use of those products in an appropriate educational setting to keep the costs to the school at a minimum while continuing to guard the revenue stream rightfully due to the product’s creator.
No wonder these laws cause so much concern for school music programs in their use of published (and copyrighted) music for teaching, rehearsal, performance and festival opportunities. The digital age with its ease of duplication and distribution has added to the confusion surrounding what can and cannot be copied for educational purposes.
The section of this law most related to school music programs is Section 107 titled “Limitations on Exclusive Rights: Fair Use.” “Fair Use” is the most cited term by those whom the use of copies is being questioned, but its description in Section 107 is straightforward. To be considered Fair Use, it must meet these four criteria:
• Commercial or Non-Profit Educational Use: Being used by a public, private or parochial school is an appropriate use.
• Nature of the copyrighted work: Music meant to be performed by an ensemble or soloist can be performed in that manner. Taking a piece of music and using it for a commercial soundtrack is not its intent.
• Part vs. whole: The Flute I part is not a substantial portion of the band piece, but the chorus folio is.
• Market effect: If making and using this copy will reduce or eliminate the revenue due the creator, then it’s not Fair Use.
It is clear that after years of research and many conversations with music educators, attorneys, copyright office personnel, licensing organizations and publishers, the four criteria of Fair Use provide the guidelines needed for making any decision regarding copyrights. From that effort, the following are the basics on how Title 17 affects a school music program in regard to the purchase, use and copying of printed material:
1. Purchase. For your school music program to use any copyrighted material – sheet music, music text books, worksheets, recordings, videos – it needs to be purchased by your school or on loan from another school that purchased the material. The revenue stream back to the creator of the material starts with a purchase and must be made even if the music is not to be performed.
2. Copies. Copies of music can be made if you are not avoiding making a proper purchase. As an example, you can copy the Flute part to your purchased band arrangement because you have one more Flute than parts provided, but you cannot buy one copy of a vocal piece for your chorus and copy it for everyone else. You can copy a page from a theory worksheet for students to practice on as long as you have purchased a workbook for each student in the class. And you can make a copy of the guitar part to your jazz ensemble piece to make your own markings and write out some improvisation lines as long as you do not change the character of the piece or intent of the musical structure.
3. Performance. Any time copyrighted music is performed, it should be done from purchased music and not from copies. This includes school concerts, festival performances, competitive events, and solos and ensembles. All state-sponsored events, solo and ensemble festivals, adjudicated or evaluated festivals, require proof that the performers are all doing so from purchased music. Again, that additional Flute part is OK for your school concert although it would be great if the person could share a music stand and read the purchased part. Admission charges (as a non-profit educational organization) matter only if those funds are going for a commercial or personal use. Charging individuals to come to your band concert does not subject you to paying royalties as long as the funds generated go to further your music program and not to pay your salary.
4. Bottom Line. Is this copy helping me use this music purchase educationally or is it to avoid paying for more material?
The holder of the copyrights to most music – BMI and ASCAP – now have a third player in the group called TRESÓNA, a firm that assists arrangers and music educators with the proper licensing of their arrangements and any broadcasts or recordings of their performances. A valuable tool when looking to write a marching band arrangement of the latest pop chart hit or making sure that you have the permissions needed to share your music performances, TRESONA does not deal with the control or application of current copyrights on standard large ensemble literature.
The U.S. Copyright Office is a wonderful resource for information and guidance in this area (www.copyright.gov) and every publisher has a licensing and marketing contact who can help with questions as well. Your state association or the organization hosting the festival you plan on attending can answer your copyright questions as well. In terms of student performances, it is not better to “beg forgiveness rather than ask permission.”
Steffen Parker, a member of the High School Today Publications Committee, is a music educator, computer geek and instructional support specialist from Vermont where he organizes music festivals and supports other states with online services for their events.
Valuable assistance in this article was provided by Alan Greiner, Iowa High School Music Association; Mike Plunkett, Oklahoma Secondary School Activities Association; James Weaver, NFHS Director of Performing Arts and Sports; and Jay Berger, Manager, Licensing and Copyright, Carl Fischer Music / Theodore Presser Company.