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Copyright Issues

0 Marcia Farabee
copyright_symbol Editor's Abstract

“One of the founding goals of Polyphonic is to explore how orchestras can adapt to a changing arts climate. One of the challenges of adapting concerts to new formats is how to do so without violating current copyright provisions.

Recently I spoke with Marcia Farabee, head librarian for the National Symphony Orchestra, a position that has given her valuable on-the-job-training about the practical side of copyright law. She also serves as president of MOLA, the Major Orchestra Librarians Association.

In September, Polyphonic will host a virtual discussion panel (VDP) with Marcia and other orchestra librarians; one of the subjects we\’ll discuss is how copyrights affect orchestras’ planning and programming.”

Yvonne Caruthers

Yvonne Caruthers: Let’s start by having you give me some examples of common copyright violations.

Marcia Farabee: One of the most common violations is people using photocopied sets they’ve made without permission of the publisher. Maybe they wanted a set for future reference and they “forgot” to tell the publisher about using it, but when the publisher finds out, they can send a nasty letter plus an invoice for what the rental would have been, or they could impose a fine.

To the publisher’s credit, I’ve never known any of them to turn down a request for a set of parts peculiar to a conductor. By that I mean that you call a publisher and say, “Conductor X has edits and bowings. May we make a set of these parts and keep it on file and we’ll contact you when we use them?” The next time that piece gets played, you notify the publisher and they will let you use your copied parts, or you can rent the actual parts (since you’re paying a rental fee either way) but use the copied ones. Occasionally the publisher will set aside a specific set for the conductor and that marked rental set travels to wherever that conductor is doing that piece.

Another possible infringement concerns making copies of copyrighted materials for use at auditions without permission from the publisher. If there is a flute audition and the repertoire list includes the Bartok Concerto for Orchestra, and we want to send copies of the flute excerpts to those coming to audition, the librarian (that would be me or my assistant) contacts Boosey & Hawkes (the US agents for Bartok) and we tell them we want to use measures X to Y. Then they send us a written agreement and a copy of that excerpt which allows us to reproduce it for the audition with “Permission granted by Boosey & Hawkes, Ltd, for audition purposes only” printed at the bottom of the excerpt. That’s true for any rental pieces on the audition list. Some orchestras post excerpts online, which we haven’t done yet because of the permissions issue. I’m sure any orchestra doing that (posting excerpts online) must go through the same permissions procedure that I just outlined.

YC: Who is the person in charge of copyright enforcement in an orchestra?

MF: 99% of the time it’s the library staff, because we’re the only ones (by default) who know, based on rental agreements, which licenses are for print rights only, and which ones give you permission to use additional items for a performance. If you want to show a movie or slides during a performance, you need separate licensing to do that. If you add any other element to what was intended to be a musical concert, the performance needs additional licensing.

Here’s also where it gets dicey. Each publisher has different stipulations: one publisher could agree to the concert date + one broadcast up to a year later; another publisher might give you rights to broadcast within 2 weeks. If you want to broadcast later, that’s another fee. Some rentals say, “This is for live performance only.” Unfortunately, there is no consistency in either the terminology of the agreements or the acknowledgment that a concert might be used in a later broadcast. Schirmer is different from Peters is different from Boosey, because the language is drawn up by each publisher’s in-house counsel.

YC: What keeps everyone honest about this? Does anyone check to see if copyright rules are being observed?

MF: Let me give you an example by way of explanation. Recently we rented music from Boosey for a program including Copland and Bernstein, both still under copyright. We are required through our rental agreement with Boosey to include a printed program of the concert when we return the music to them. And we are required to send ASCAP the list of all programs for the year. ASCAP and Boosey compare notes…we have gotten letters from ASCAP that say “we have a letter from publisher X saying you rented this piece, but we don’t have the program showing it was performed.” They compare the two so the copyright holder gets credit (and gets paid).

If Boosey or ASCAP finds an infringement, they can come back and say, “You were supposed to pay; here’s the invoice.” If an organization has several infringements, the publisher might say, “From now on you have to pay in advance before we even ship music to you.” As a last resort they could take you to court – I don’t know if that’s happened, but it would be very expensive.

YC: What if orchestra QRS rents the music for West Side Story and wants to show film clips as they play along? Could they plead ignorance?

MF: They’d have to be really out of the loop if they did that, because somewhere along the line someone should ask, “Do you have permission to show this film?” Of course if they rent it at Blockbuster, they’ve bypassed the mechanism that should ask the question. But if you were showing the film along with a concert of the music, presumably that fact would show up in your ads or your program because it would be an enticement for people to buy tickets to the concert. So, no, ignorance would probably not hold up in this case.

YC: Wait a sec – am I being illegal myself by performing a Britten cello suite with dancers? I don’t know if anyone contacted the publisher….

MF: But you were hired by the dance company, yes? If I were in that position, I’m being hired for my musical skills and it wouldn’t necessarily cross my mind to question whether the employer gotten the licensing agreements that they need. Is it your moral obligation to raise the issue? In this case, I would say “No,” but somebody in the dance company needs to have enough savvy to ask, “Have we met all our legal obligations in regard to this piece?” They may not know specifically who to go to in asking permission, but someone should be asking questions like that.

When Suzanne Farrell’s company first danced at the Kennedy Center, they asked me to be their librarian. The first season she wanted to do some of Balanchine’s works (written for her). However, some of the pieces were by Stravinsky, so I said to the Kennedy Center dance folks, “When I reserve this music, I’m going to tell them it’s for the Suzanne Farrell Ballet and they should contact you if they have any questions.” But if they had pulled in a grad student to do librarian duties, that person might not have known to raise these questions. If no additional license or permission had been obtained, several people could have gotten into trouble for copyright infringement. Suzanne Farrell shouldn’t have to think about these things, but someone in each organization needs to know about licensing issues – how to decide who that is? Hard to say, but for orchestras, the librarian is the default person.

Not that long ago I realized that when I was in college, the only copyright issue that was mentioned in all of my courses (I was both a performance and an education major) was that of photocopying music. In the performance end of my training, copyright was never even mentioned.

YC: Can performances be posted on the internet without worrying about copyright?

MF: I think there is great confusion over what is “live” and what is “taped” usage. What is the difference between a webcast, live streaming, podcast, satellite radio, live radio – does anyone understand these small differences? I have asked the MOLA-Publisher Joint Committee members to define each usage according to their organization – what do we think those terms mean? Is there a difference between satellite radio and regular radio? So far the definitions are only guidelines; no one wants to be the first guinea pig, and nothing has been “proven” in court.

MOLA wants to get publishers to define the terms so that we can have one-stop shopping. If an orchestra says they want to do internet streaming, there should be a common definition of what that means among publishers so the license can reflect that. What is “limited use?” Once it’s on the internet, nothing is “limited” anymore. If we have well-understood terms, we’ll all have a better a chance of compliance.

YC: Can we talk for a moment about making an arrangement of a well-known tune?

MF: You have to go to the copyright holder and get permission to make an arrangement – it’s not true that if it’s recorded anyone can make an arrangement of it.

YC: I learned this when I made an arrangement of Happy Birthday….

MF: Arrangements are really dicey. If you are arranging for a one-time free performance, there’s a good possibility that no one will ever know: a string trio gets asked to play Moon River for a wedding reception, and there is no arrangement for string trio, so you quickly write one out. The chances of being found out are slim to none. However, if you had any hopes of using it again, you’d have to go to the Henry Mancini estate and ask for permission to write a string trio arrangement of Moon River. They will probably ask what it’s for, how often you expect to use it, and whether you intend to publish it. They might grant you one-time usage or they might charge you for usage for an entire year and ask for a copy of your arrangement – they can put any restrictions on it that they want.

When we did an arrangement of an Ellington tune for our children’s concerts, the agent for the copyrighted piece charged us a small fee and told us we could have unlimited usage for one year. I made sure the conductor and the arranger were aware of this agreement, in case we needed to use the piece another season (or they wanted to use it with another orchestra).

There are several good copyright links at the MOLA website: www.MOLA-inc.org. There is a wonderful new, pocket-sized book written by Rob Monath, an attorney. The book is in plain English (not legalese) and is very practical. Its title is By the Book: A Simple Copyright Compliance Method for Musicians and Music Professionals, ISBN #: 0-932018-32-4.

MENC also has a good copyright primer: http://www.menc.org/resources/view/copyright-center

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