Music Law


US Music Law
Current U.S. Copyright Law represents an attempt by Congress to balance the rights of music creators and copyright proprietors with the rights of copyright users. That is, Congress wanted both to protect those that produce and own copyrighted music (composers and publishers) and to recognize the needs of those that use and enjoy those materials (listeners, performers, and music teachers). The compromise represented by current Music Law is the result of numerous congressional hearings as well as studies conducted by the U.S. Copyright Office, in connection with which a substantial amount of testimony was heard and numerous comments were received from members of both groups. Of course, debate on the best way to manage the use of creative materials was and is contentious, particularly around the specific ways that educators can properly use copyrighted works without a formal license.

Rights of Copyright Owners
The U.S. Copyright Law is designed to encourage the development of the arts and sciences by protecting the creative work of the individuals in our society » composers, authors, poets, dramatists, choreographers and others. copyright law deals first with the exclusive rights belonging to the owner of a copyright (which may be the composer or, if a deal has been cut, a publisher). These are things that only copyright holders can do unless they grant specific permission to others.

These rights, as stated in the law are:
  • To reproduce the copyrighted work in copies or recordings
  • To prepare derivative works (e.g., arrangements) based upon the copyrighted work
  • To distribute copies or recordings of the copyrighted work to the public (mostly by sale, but also by rental or other methods)
  • To perform the work publicly
  • To perform the copyrighted work publicly by means of a digital audio transmission

So copyright law starts out by saying that the copyright holder has the exclusive right to reproduce, arrange, and perform works. The law, however, proceeds to limit these rights in certain specific instances, including library copying and educational broadcasting. The most important group of limitations for music teachers is embodied in the section of music law that outlines the concept of "educational fair use."

Music Law - Reproducing
Fair use, which applies to all users, allows certain uses that would otherwise be illegal infringements of the copyright owners rights. For example, limited quotations of an excerpt from a work in a review or a news report are generally seen as constituting "fair use." Fair use may also be found when the use is for purposes as criticism, comment, scholarship, research, or teaching. There is, however, no simple black-and-white test. The Fair Use provision of music law sets out four factors a court must consider in determining whether uses for these purposes may be judged "fair":

  • Purpose and character of the use (e.g., commercial or educational?)
  • Nature of the work (epic poem, song, limerick, novel, opera?)
  • Amount and substantiality of the portion used (how much is being copied and how important is the copied material to the work?)
  • Effect on the potential market for or value of the work (is the monetary value of the work hurt by the unauthorized use?)

These four factors are listed in copyright law itself; in 1967 and again in 1975, legislators asked for help from the field to develop guidelines to help teachers and others analyze these factors. Based on this legislative compromise, the intent of copyright law seems to be that music educators can do several things, without having secured permission of the copyright owner:

  • 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 a single recording of a student performance for study and for the schools archive
  • Make a single recording of aural exercises or tests using copyrighted material
  • Make up to three copies to replace a copy that is damaged, deteriorating, lost, stolen from a public library or archive (or if the existing format has become obsolete, and if, after reasonable effort by the library/archive, an unused replacement cannot be obtained at a fair price)
  • Make one copy of a short verbal or a graphic work for teacher's use in preparation for or during a class
The following, however, are expressly prohibited:
  • 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

Note that a work may be out of print does not mean that permission is given to copy and distribute that work. Music educators sometimes would like to procure a copy or copies of an out-of-print copyrighted work for specific purposes. For that reason, the music publishers trade associations have prepared a simple form for use in the procurement of out-of-print works. The form is reproduced as Appendix E.

Duration of Copyright

The duration of copyright has changed several times as Congress refined compromises over existing copyright law. Currently, one can generally presume that a work copyrighted less than 95 years ago is still covered by the law. Here are how the details work:

  • Works created after January 1, 1978 will be protected for the life of the composer (author) plus 70 years.
  • Copyrights in effect on that date, if renewed, will continue for 95 years from the date copyright was originally secured. Renewal became automatic for all works that first obtained US copyright in 1964 or later, so those works in their initial 28-year period of copyright on January 1, 1978 could have been or now can be renewed for an additional 67 years, while the copyright of works in their renewal term on that date were automatically extended for an additional 19 years, and, if still in copyright on October 28, 1998, again for an additional 20 years, for a total of 39.

Penalties for Infringement

The remedies provided by the law to a copyright owner mean that a music educator found making illegal copies, or otherwise infringing, could face some very unpleasant consequences:

  • Statutory damages of from $750 to $30,000 in the simplest cases. If the court finds that the infringer was not aware and had no reason to believe that his or her acts constituted an infringement the minimum damages may be reduced. Also, the penalty can be remitted for teachers in public or nonprofit schools who had reasonable grounds for believing that the "fair use" portions of the law applied. But be aware that ignorance of music law is no excuse, teachers who wish to use this provision need to understand "fair use" and make the most of the privileges it grants, but they must also abide by its very definite limitations.
  • If a court decides that the act of infringement was willful, the damages can go up to $150,000 per copyright infringed.
  • If a court finds willful infringement for commercial advantage and private financial gain is proved, the infringer can face criminal fines of up to $250,000 or five years imprisonment, or both.

The information provided in this guide should not be construed as law, but only general information regarding US Copyright Law.
You can visit the US Copyright Law website for additional information at http://www.copyright.gov/
Most of this guide was copied, with permission, from http://www.menc.org/information/copyright/copyr.html