Thomas J. West Music

Copyright law has been well-established historically in the United States for over 100 years, and hasn't changed much since the copyright law of 1976. Copyright law is quite simply what it implies: the creator of an intellectual work retains all rights to copy and distribute their work to the public. When an author or composer uses a publishing company to distribute their work, they sign away some or all of their rights to their work and receive compensation for it from the publisher, usually in the form of royalties.

The internet, however, is diametrically opposed to this law by it very nature. It is so simple and convenient to share, edit, alter, mash-up, mix, and misrepresent information via the internet that copyright holders and media distribution companies have had their livlihoods threatened in new and potentially devastating ways. Most music teachers don't want to break copyright law, but factors such as time, limited budgets, and ignorance contribute to the problem. Using any kind of information in print, on recording, or online has become so commonplace that there is, in fact, virtually no way to uphold copyright law without being completely paralyzed and unable to share anything legally (unless of course you have a bankroll and administrative staff to pay for usage rights, working at least a month in advance to secure rights for everything you use). Common sense and a sense of ethics are required.

Fair Use Guidelines For Educators

Most teachers have heard of Fair Use Guidelines and basically believe that photocopying or digital copying is legal for them because they are a teacher. Not so. Fair Use guidelines are not law, but they are guidelines a court will use in copyright infringement cases. Those guidelines are:

(1) Emergency copying to replace purchased copies which for any reason are not available for an imminent performance, provided purchased replacement copies shall be substituted in due course,

(2) For academic purposes other than performance, single or multiple copies of excerpts of works may be made, provbided that the excerpts do not comprise a part of the whole which would constitute a perfromable unit such as a section, movement, or aria, but in no case more than 10 percent of the whole work. The number of copues shall not exceed one copy per pupil.

Notice that guideline 2 is for uses other than performance,

Additionally, the following is expressly prohibited:

(1) Copying to create or replace or substitute for anthologies, compliations, or collective works.

(2) Copying of or from works intended to be "consumable" in the course of study or teaching such as workbooks, exercises, standardized tests and answer sheets and like material.

(3) Copying for the purpose of performance except for emergency copying to replace purchased copies as outlined in (1) of the Fair Uses.

(4) Copying for the purpose of substituting for the purchase of music, except as in the Fair Uses.

(5) Copying without inclusion of the copyright notice which appears on the printed copy.

If you read through this list of fair uses and prohibitions, you will most likely be able to think of a situation where you violated these guidelines. That is why they are guidelines and not laws - if they were laws, they would be virtually impossible for law enforcement agencies to enforce. It basically comes down to you and your sense of integrity and ethics. Before you copy, ask yourself, "Am I taking bread off someone's table?"

Creative Commons Licensing For The Internet

By now, most of us have heard of Creative Commons licensing and are beginning to get used to seeing the CC-BY-NC and so on indications posted for online content. Creative Commons is basically a "some rights reserved" approach to sharing information on the internet. Legal copyright law retains all rights to copy and distribute (all rights reserved). By attaching a Creative Commons license to a piece of intellectual property, you are giving up some of your rights in an effort to allow free dissemination of your material online or offline.

An important thing to know is that Creative Commons licenses are irrevokable. Once you attach it to your work and publish online, you lose control of changing that license later.

Creative Commons has a great FAQ explaining how the licensing works. Additionally, EdReach published this excellent article on the use of Creative Commons licensing for educators. There are a growing number of resources online for sheet music that is either in the public domain or has been assigned a CC license by its composer for you to download and use freely. Just one example of each are the Choral Public Domain Library and 8notes.

As a composer, author, and arranger myself, I use Creative Commons licensing regularly to create material for free distribution. There really is no way to generate revenue from every single thing you write unless you are in that 1% category of John Williams, Steven King, or George Lucas. Creating free material helps build your network of people who have an interest in what you have to offer.

As a teacher, I find it very challenging to stick to copyright laws and appreciate greatly when I find Creative Commons licensed material. As I mentioned, it is nearly impossible to avoid violating the fair use guidelines at some point, especially when your first chair flutist lost her music folder again and you have no original copies left in reserve.

Cited Works

I do not claim to be an expert on copyright law. Most of the information I shared in this article comes from an out-of-print book by Jay Althouse entitled Copyright: The Complete Guide for Music Educators that I purchased in 1998. Obviously, this was before the explosion of resources on the internet and before cloud computing. As I mentioned, copyright law hasn't changed, however, the ways in which you can violate the law has increased exponentially.

For a modern interpretation of copyright law as it applies to music education, I highly recommend Dr. Jim Frankel's Book The Teacher's Guide to Music, Media, and Copyright Law. Jim has an intimate understanding of the power of resources such as YouTube in the music classroom and has written an indispensible guide to the modern world of at-your-fingertips information.

Do the best you can to operate within fair use limits, while keeping the best interest of your students in mind. Convenience is not an adequate justification for copying. Neither is a lack of budget or planning.

I often find myself in a situation where I have to write additional instrument parts for my oddly-instrumented chamber orchestra (20 strings, 2 flutes, 2 clarinets, and a full saxophone section?) and justify the dirivative works by maintaining that an author or publisher would not be able to successfully market a version of their work with that unusual instrumentation. Use your best judgment, and support composers and publishers as much as you can - we need them!

This article (c) 2011 Thomas J. West. All content on ThomasJWestMusic dot com is licensed under a Creative Contributions Attribution-No Derivative Works 3.0 License. Please contact the author before publishing on or off-line.

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