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Playing Copyrighted music on SOTW

13K views 31 replies 21 participants last post by  Graftonsax 
#1 · (Edited)
Have read all the posts re playing copyrighted music but am still no wiser. What is the legal position about my trio playing a copyrighted piece and putting it up for critical comment on SOTW? I have tried asking the UK PRS but have had no reply!
 
#3 ·
Well, since I don't know anything on this topic......I will feel free to comment anyway, as I often do.

I think these are 2 different questions: (1) is it legal, and (2) is the copyright holder likely to take any action (if I post a recording for comment, but am not making any money on it)?
 
#4 ·
well well ;) let's vent......, is it legal to play copyrighted music while basking or on myspace or any other hosting site?........probably, strictly speaking, not.

Copyright issues have international and national aspects and this possibly being a Finnish site (if it resides in Finland......) probably would follow some Finnish rules, if otherwise SOTW resides in a state where there are no rules about copyright (there are such places ) then things are different. But are they?

Although there is probably a publisher responsibility , there probably is also a musician responsibility and that might very well be an issue not concerning the publisher because of its particular place of publishing (assuming that his has a different territorial rules), so one could be possibly being asked to answer for playing copyrighted music in the country of origin but........ does anyone really care? I do not think so.
 
#6 ·
My understanding of the law is such that Posting CD quality performance recordings of copyrighted material for sale (or that could potentially be sold) would be a violation and would require some compensation to the copyright owner but ANY piece of music can be performed publicly without obtaining approval.

HOWEVER, if the written music is needed to perform the piece then the written music must be purchased or have otherwise obtained the approval of the copyright owner.

I am interested to see if there are any copyright lawyers on the forum who can answer. I have had some graduate level business law courses and had some interesting discussions around this, but it is all subject to any precedent being set in local courts on the matter.
 
#7 ·
My understanding of the law is such that Posting CD quality performance recordings of copyrighted material for sale (or that could potentially be sold) would be a violation and would require some compensation to the copyright owner but ANY piece of music can be performed publicly without obtaining approval.
Close.

The performer can play whatever their heart desires, but the employer/venue must have a blanket license in place to see that royalties are paid to necessary parties. Ascap, Bmi and Sesac should get you covered.
 
#10 ·
It has to financially benefit someone before they go after you. Whether somebody doesn't buy a disc and it shafts the performer et al, or providing music to patrons as a value added, somebody needs to take care of the royalties owed. Live music, recording or radio, somebody owns the rights.

(I haven't dealt with this stuff in 17+ years, consult an expert before trying anything)
 
#11 ·
Carl,

True, but my point is that it doesn't matter if the "performer" is getting paid for playing, or for his recording etc. If he copies the IP without a license, it's a violation.

Many people erroneously believe because they are not charging people to listen they are not culpable. they will say "I'm not charging for the CD, just giving it away" or " I'm not making any money off it." Doesn't matter, if you copy it without permission (the right in copyright) you have broken the law.

Now, whether you have something the copyright owners can get in return for your violation of copyright, does increase your risk of being sued. But the RIAA has gone after many who have nothing, just to prove a point.
 
#24 ·
… it doesn't matter if the "performer" is getting paid … if you copy it without permission (the right in copyright) you have broken the law.
In the US:

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of "fair use."
… You must be very careful about fair use. …
So does "fair use" allow us to legally copy material to our mp3 players and make backups?
 
#12 ·
Yes. They will go after anyone they can randomly.

It is seldom a performer who is gone after though. They go after the one who signed the performers, even when there is no signature or money.
 
#14 ·
There are lots of tribute bands around. I never hear of them being sued for copyright violations. Does that ever happen?
 
#16 ·
Here is a copy of a letter I received from Jamey Aebersold regarding this issue:

"Thank you very much for using and promoting our play-a-long recordings. We design play-a-longs we ourselves would like to play with .

Regarding YouTube and other electronic media, we don't really have any objection to the use of our tracks for demo purposes (see attached "official" policy) but please understand that we can not give you permission to play copyrighted melodies because we do not own them. You could stick to just improvised soloing (don't play the melody) but the copyright holder might still have YouTube take it off unless they actually take the time to listen and see you are not playing the melody. You would then have to go through the process of convincing YouTube (or the copyright owner) that you were in compliance with copyright law - something perhaps easier said than done. I really don't know how to advise you on that. Of course, much of our catalog depends on good relations with copyright holders, so we do respect their legal right to control their property.

You could always go with Public Domain (PD) songs. There are many listings online. We have some play-a-longs, such as Volumes 39, 78, 79, 80, 100, and 125 that contain mostly PD songs. If the copyright at the bottom of the page is "Jamey Aebersold Jazz", it is a PD song. Of course, you are welcome to record any of Jamey's originals as well."


I wouldn't worry too much about it. Do what Aebersold did in the early days and rename the tunes and change the melody slightly, if you are really worried, but I think they have bigger fish to fry.
 
#17 ·
Thanks for all that Guys. it seems the quick answer is "At your own risk!" As a writer in the UK (6 books, all copyrighted) I understand this and agree that owners should be paid. I dont mind doing that but who do I pay in the UK? The PRS here don't seem to want to know!!!!!!
 
#18 ·
If I were a member of your trio, I would gladly accept one third of the copyright fee, leaving you the other two thirds.

During the 60's my band leader had to fill in a list of all tunes played at the gig, to satisfy copyright law for the Musicians Union (UK)
We made sure Charlie Parker numbers were listed, to benefit his widow.
 
#21 ·
Just to give an example of how stupid can this kind of things get, in Belgium from next year on, kindergartens will have to pay royalties on the music and films that they might playing to the children , at a private home there are no right to be paid if you entertain children, a Kindergarten of 100 m2 will pay in the region of 136euro a year.
 
#22 ·
In the US:

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of "fair use." The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. http://www.copyright.gov/fls/fl102.html
 
#23 ·
Did you ring them? That would be better than writing. I've managed to speak to them on the phone about this.

Exactly! Look at Youtube, they break all the rules.
Actually, I don't think they do. Their terms forbid the uploading of copyright content, and if a copyright owner complains, they take it down. Besides I believe they actullay have some agreements with UK PRS about this anyway, I have received royalties from them for Youtube stuff.

Kind of off topic but I got booked in a top 40 band to play some bar. When we got there the owner told us he didn't have his ASCAP certification and asked if we could play all original tunes. :?
That makes sense, it has happened to me on TV shows, I have been asked to play only originals.

There are lots of tribute bands around. I never hear of them being sued for copyright violations. Does that ever happen?
Unlikely as they would not be breaking any copyrights purely by being a tribute band. Provided any CDs they made had the appropriate licenses. Playing cover tunes live is covered by the venue's licence (PRS, GEMA, ASCAP etc)

Thanks for all that Guys. it seems the quick answer is "At your own risk!" As a writer in the UK (6 books, all copyrighted) I understand this and agree that owners should be paid. I dont mind doing that but who do I pay in the UK? The PRS here don't seem to want to know!!!!!!
The PRS/MCPS can issue a LOEL, limited online exploitation licence which is not too expensive and will allow you to legally upload copyright compositions. I asked them about this and got the licence quite easily.

Do I have to pay royalties if I hum a tune walking down the street?
No. It might come to that one day though.

). One of the more important limitations is the doctrine of "fair use." The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.
You must be very careful about fair use. It should not be seen as right to copy copyright material for certain purposes, as it is mostly a defence you could use after the fact, and the outcome is far from certain, as it's down to the best lawyer or the whims of judge and jury.

In some cases fair use is defined, e.g. legitimate broadcast news coverage, photocopying part of a book for a lecture handout (but it must be a very small part of the book). My wife writes academic articles and books. They are educational but she still needs to get permission for quoting lines of songs, illustrations, notated musical examples etc.

Regarding putting something up on SOTW, you wouldn't be doing that, you would be linking to something on SOTW. So SOTW is not actually hosting the file (though with uploaded images and avatars it's a different story)

However there may be a different interpretation if you embed a copyright work in a Youtube video within a post. I don't know the law on that, it probably hasn't yet been tested.
 
#26 ·
Pete is correct, Fair Use is a defense you can employ once you have been sued, you cannot exert it before that.

Basic premise: if you didn't create it, you can't use it, unless and until you get permission from the person that did create it. That permisssion comes in the form of a license, which unless it is a complete buyout will have limitations, i.e. time, location, number of copies.

That said, whether you get sued or not is an unknown, therefore it comes down to how much risk are you comfortable taking. Weigh the risks, and make your own decision, but if you are sued, don't think you can defend yourself by saying " but I didn't make any money from it... I didn't do it for money." It doesn't matter, if it's not yours you can't use it unless and until you get permission from the copyright holder (which at times can be difficult to determine and there may be more than one).

I am not a lawyer and this is not legal advice.
 
#30 ·
Thank you to Bill and Pete (he said, as he scratched is confused head :dontknow:). I can't help thinking there must be some legal basis for copying and backing up mp3s, although it's hardly the sort of thing one loses sleep over.
 
#31 ·
Here is an exact quote from the statute:

"§ 107. Limitations on exclusive rights: Fair use40

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

Title 17 US Code Chapter 1 section 107

There is a link to this in post #22

The statute says, "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." A lot of the postings on SOTW easily fit into criticism, comment, teaching or scholarship, no worries [IMHO].
 
#32 ·
I think we are forgetting a couple of things here. The OP is in Scotland? And this site is hosted from? Denmark? Finland? Sorry I forget where Harri is based, but I guess his hosting could be about anywhere. Does US or UK copyright law even apply? I honestly don't know which countries acknowledge US/UK copyright law.

Play all the copyrighted music you want here, unless one of three things happen 1. you try and collect money from it, 2. the original owner of the copyright tells you not to or, 3 Harri tells you not to.

I don't see the last 2 happening unless you attempt the first one.
 
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