A couple of more mundane copyright questions

G

1) One of the publishers claims that if we print a program using a public domain text, if the music to which we intend to sing it, (but which we do NOT intend to put in the program) is copyrighted, or even if the accompaniment we intend to use to a public domain tune is copyrighted, we need to give credit in the program, and pay a fee if we don't have a yearly license.

Is that wishful thinking on their part?

2) A hymn text and tune, both copyrighted, appear unison in our "choir edition" hymnals, of which we have purchased sufficient for the choir.
If I write an SATB for the immediate use of my and my choir, do I need to get permission to make 23 photocopies which will never leave the loft, or be used anywhere other than where the actual hymnals, from which we have the right to sing, are kept?

(Save the Liturgy, Save the World)

chonak

(1) According to this ASCAP page, you don't need permission to perform copyrighted music in public at a worship service. Now, if you were getting their permission to perform it at some other venue, they could require a license agreement with whatever conditions they want.

(2) From what I'm reading on the net, the copyright holder has the exclusive right to make arrangements of the music (with some minor exceptions). So you may need to ask permission just to arrange the piece at all.

Those things having been said, let me emphasize IANAL.

Jeffrey Tucker

1) I think that is correct - as absurd as it sounds.

2) I think you technically have to. But be careful: you might have to fork off royalties.

Thus we observe the terrible thicket that IP creates just for living a normal life.

noel jones, aago

1) One of the publishers claims that if we print a program using a public domain text, if the music to which we intend to sing it, (but which we do NOT intend to put in the program) is copyrighted, or even if the accompaniment we intend to use to a public domain tune is copyrighted, we need to give credit in the program, and pay a fee if we don't have a yearly license.

Is that wishful thinking on their part?

Yes, marijuana use IS legal some places, which may be the only rational explanation. The only copyright is over what they have done with the PD text and they specifically cannot claim something that is PD without changing it. Meaning that if they compose a song on the text, "To be or not to be." they have complete control those words ONLY when sung to their tune. When you ain't singin' it to their tune, they are rotated into a piece of lumber with a straight-edged screwdriver. [I am trying to clean up my act for Sunday morning]

2) A hymn text and tune, both copyrighted, appear unison in our "choir edition" hymnals, of which we have purchased sufficient for the choir.
If I write an SATB for the immediate use of my and my choir, do I need to get permission to make 23 photocopies which will never leave the loft, or be used anywhere other than where the actual hymnals, from which we have the right to sing, are kept?

You MUST get their permission before you write the arrangment. That's the law. It's theirs and they have the right to tell you no. Photocopying an illegally created arrangement is however, totally legal...as long as you are smoking the same stuff the publisher cited in #1 above is.

(Save the Liturgy, Save the World)
(Legalize.....Incense...."Officer, I only smoke this for religious purposes."

miacoyne

This is way over too complicated. I'd rather not sing hymns than going through all this trouble. Besides, the parish I work for cannot afford to pay more than what they have now. So we end up singing only the hymns that are in the hymnal we have, and more than half of the hymns we don't sing out of that hymnal.
Sorry to bring it up here. If the hymns are granted to use for 'public worship' (and the composers accept it), are the individuals supposed to still own that music, or they belong to the Church? When did the liturgical music that meant to be used for the liturgy became personal possessions? Was it ever meant to have personal hymns used in the litrugy to be payed whenever the faithful uses them? To my common sense, this is getting too much. I think this is another trend of secularism imported to church and complicates matters (to say the least) that are getting out of hand. It just frustrates people having the musicians waste time to figure out legal things. I feel that not many people in church really benefit out of all this trouble.

Jeffrey Tucker

Solution forthcoming

Gavin

I don't get HOW #1 can be illegal! If a choir performs a copyrighted work with public domain texts, there's no loopholes to putting the text in the program, is there? Same thing at a church, given that if it's a Catholic church, no one will be singing along anyway...

As for 2), technically you do need permission to write it. And morally I'd say it's way up with high sins like saying "shoot" or "fudge". But my advice is... don't show any lawyers the music!

miacoyne

Thanks, Jeffery. I know this would be a huge chanllenge for anyone. I admire your courage for taking on this task. Even if I don't see it happen in my lifetime, I still appreciate it.

g2g (got to go)

priorstf

mia - your frustration is fully legitimate. Laws are, for the most part, meant for lawyers. The people who do the work (composing, editing, typesetting/engraving, etc.) rarely make the money.That's one of the ugly parts of capitalism.

However, perhaps one contribution CMAA can make is setting up its own "publishing house" to make available the various traditional public domain hymns, chants, and even new Masses being composed as we speak. In that way we can stop grousing about the lousy way everybody else does it and start doing it the proper way. And the good shall win out.

Doing so will be far from easy. Not only would the computer software have to be in place (perhaps with connections through Lulu or other on-demand printing for those who want hardcopy) but an entire editing, reviewing, etc process would have to be put in place; we wouldn't want to be associated with every Missa Clowna that comes along. And we'd have to coordinate with the USCCB (and/or other Church authorities) to ensure the we adhere to their guidance.

But doing this will ensure that the Catholic music organization most rooted in ancient history become the leader of how things will be done for the future.

Jeffrey Tucker

priorstf, right on in every way! (but let's make clear what to blame for the existing problems: not capitalism but IP). all of the old liberals of the 18th and 19th century were against IP for this very reason.

Maureen

Actually, printing public domain texts, or any texts, with the notation that one intends to sing them "To the tune of:" is legally protected by the decision won by Mad Magazine. It holds that the composers/lyricists of a song do not hold exclusive rights to putting lyrics to a song; and that it is perfectly proper to publish and even make money off new lyrics printed by themselves, with no more credit needed than that the song is to be "Sung to the tune of" the name of the song.

It is possible that this decision could be held in the future to apply only to humorous parody as such. However, a wide variety of people and publications have used "To the tune of" with good result, when it comes to printed lyrics which were not really humorous, and ASCAP hasn't challenged that. The judge's decision does seem to protect such uses in passing, as it were. The decision was strengthened because the judge refers earlier in the decision to the fact that even lyrics which might go a bit too far and infringe should be given protection under fair use, if they aid the public good of creativity. He was a Daniel come to judgment! A Solomon!

(Unfortunately, recordings and mechanical licenses thereof fall under a different and far later set of rulings, which are largely restricted to political parody, and which the courts have read as a very restricted group of parodies at that. The 2LiveCrew rulings were really, really stupid.)

However, it is likely that "To the tune of" is indeed necessary for legal protection under the Mad decision.

http://en.wikipedia.org/wiki/Mad_(magazine)#Supreme_Court_cases

http://cip.law.ucla.edu/cases/case_berlin_ec.html

Maureen

It was also my understanding, btw, that arrangement permissions and fees only refer to arrangements which are to be formally published as sheet music, etc. Otherwise, every rock band in the world playing covers would have ASCAP thugs sitting in the front row ready to fine them for every improvisation.

I'm not up on composition law, though.

noel jones, aago

ASCAP thugs do sit in the front, even in funeral homes.

Maureen

Well, that's because they want to fine the funeral home for playing recorded music or having the radio on or whatever. It wouldn't surprise me if their zeal didn't stomp out live performances altogether. Twits.

But I do have to say that church musicians seem to receive considerably more in the way of threats from publishers -- threats with no backing from legal statutes or legal decisions, in some cases, but definitely more threats than regular musicians. Seeing as regular musicians and venues have more than enough headaches from ASCAP, that's saying something.

I suppose that's the drawback of having a fixed address, and the intent to stay both law-abiding and open for business for years and years

noel jones, aago

Regular musicians are PROTECTED by ASCAP and BMI....you may have them confused with some government body....

noel jones, aago

Friends, Irving Berlin et al. v. E.C. Publications, Inc. 329 F. 2d 541 (2d Cir. 1964) does not give you permission to write words to a tune...it merely states that the actions of Mad magazine did not hurt the sales of the song and therefore there were no damages.

So before you go out and write lyrics to a Beatles tune....don't.

Maureen, church musicians do not get more threats than "regular musicians" because, and forgive me if i am being argumentative:

1. We are !@#$%%% regular musicians, except for some dilettantes.

2. We, though we are regular musicians, egregiously break the law with such frequency compared to regular musicians that an ultraviolet light held over the underside of our thumb, be it right or left that we normally use, will show the word in reverse, a word that reads PRINT, if the thumb is held up to a mirror.

If, during an autopsy, an ultraviolet light shines upon our thumb, the diener will turn to the ME and say, "Hey! A church musician!"

IF, Maureen, you have NEVER EVER MADE AN ILLEGAL COPY, you may challenge me.

I've done it.

Give me a link to a catholic church that has been sued over copyright infringement by GIA, OCP or any of the others during the past 12 months. I'd like to see it. It's the law, but unlike publishers of music for regular musicians, they do not actively file lawsuits.

They prefer, like BEST BUYS, to have a security person say hello to you and let you see that he is watching the entire store on his video cameras.

Prevention is cheaper than law suits.

From the lawsuit:

"While the plaintiffs have resolutely insisted that the defendants' use of the original songs as a vehicle for the parodies was wrongful, and have alleged, in general terms, that the claimed infringements 'caused substantial and irreparable damage,' they have not indicated with any degree of particularity the manner in which injury might have been inflicted. There is no allegation akin to 'passing-off'; with considerable reason, the plaintiffs have not asserted that the music-buying public could have had any difficulty in differentiating between the works of plaintiffs and defendants. Neither is there a claim that defendants' parodies might satisfy or even partially fulfill the demand for plaintiffs' originals; quite soundly, it is not suggested that 'Louella Schwartz Describes Her Malady' might be an acceptable substitute for a potential patron of 'A Pretty Girl Is Like a Melody.'

Rather, plaintiffs appear to seek redress upon a theory of copyright relief, closely resembling that behind recovery for unjust enrichment. Pointing to the use of the titles, the meter, and an occasional phrase from the original lyrics in an occasional song, the plaintiffs insist that their copyrighted efforts were improperly appropriated by the defendants for their own financial gain. Asserting that the copyright laws restrict the economic benefits of copyrighted works to the copyright holders, they reject the notion that a parody or burlesque version of the original may ever be justified as the sort of 'fair use' which traditionally has permitted a literary critic to employ limited quotations from the copyrighted work under review. Cf. Lawrence v. Dano, 15 Fed.Cas. 25, 61 (No. 8136)(C.C.D.Mass. 1869). Indeed the plaintiffs broadly maintain, 'copying for commercial gain may never be fair use' and thus, in effect, they refuse to recognize parody and burlesque as independent forms of creative effort possessing distinctive literary qualities worthy of judicial protection in the public interest. "</B

Mr. Z

I have always tried to follow "the spirit of the Law" re: copyright over the letter of the Law. It sometimes becomes moot the "breaking" of the Law , i.e., the case cited, "loft only" arrangements. This might be an area in which the publishers can "over reach" sometimes with their claims (and as many already know, too well, probably, I am advocate for, in the main, of publishers'/composers' rights). As a composer, I don't give a hoot about someone arranging my piece, in a smaller venue like a church, if they do it well, and if they don't, I don't necessarily want it known that that is mine. It is somewhat an homage, I think, when someone goes to the trouble of making an arrangement. Usually that level of commitment will produce something at least "OK." So, again, in a lawsuit, what are one's claims for "damage."

A lawyer might say different, but I would say, make your arrangement, keep the composer's name on it maybe, or both names, don't circulate the thing, and keep rolling. The rock band reference is actually pretty good concerning "covers."

Having worked with some really very nice people at BMI, I really do question the gratuitous language, i.e., "ASCAP thugs." Why are they "fair game" for invectives in made up scenarios? I don't get it.

On the good side -in the vain of "Never let a crisis go to waste," to quote some Machiavellian "thug" (now THAT is a thug!) the specter of copyright "police" and "surcharges," real and imagined, can provide at least a way to present the music inherent to the Roman rite as a solution to a music department's budgeting concerns, as so much of that is available, right now, free and with almost no restrictions, no small thanks to CMAA and friends. (Anit-thugs).

JZ

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