Marcia Farabee  

Copyright Issues

Marcia Farabee
July 16, 2019

Editor's Abstract (Click to Hide)

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.

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