Perect Storm - what's going on in the remote business?

[charles maynes]

Originally Posted by Corran

That's a possibility (that I have/am exploring), but the problem is copyright. If one were to build their business around selling CD's, you would think eventually a composer or agency would get wind of it and you could be in serious trouble.

Now personally, I think selling CD's of a band concert should be under the "Fair Use" policy. The students/parents buy it as an "archival" recording, and the student was personally involved in the music-making. If a band director is allowed to have an archival CD, as would an orchestra soloist, why can't every one of the musicians in a performance get one too? It's not like the CD is being put on Amazon for public consumption.

That's probably fodder for a whole other thread though.

the copyright issue is a good one- I think since they do not sell outside of the venues, it migtht be considered more of a documentary sort of performance. But since the school or organization is actually more culpable- since they might be charging for a performance, without paying performance rights fees, you might be able to get them to sign an acknowledgement of responsibilty.

[Thomas W. Bethe]

Originally Posted by charles maynes

The other route around this is to start offering finished goods- IE to be able to sell CD's or better yet DVD's of performances- The money in that is actually not horrible- and then instead of getting the money from the group, you offer to give them a small percentage of the revenue from the endeavor- Generally you can set up a table and take orders for the product at the performance- if it is a school band or something you will definitely make sales. If you work other schools, you can sell all of the schools performances at each performance.

Here in SoCal there are quite a few folks doing that with some success- the key is zero outlay from the group....It costs them nothing if the thing is not profitable.

There is a company around these parts that use to NOT CHARGE for doing recordings BUT the groups had to purchase 75 CDs at $15.00 each. So in reality he was charging $1125.00 for the recording and the 75 CDs. His company did not do video and did not use any editing software but he would take the DAT tapes, add eq and reverb thought a Mackie console and burn them on to a CD which he would then make copies of. He hired other "engineers" and equipped them with a portable DAT, two good quality microphones, two microphone stands and and pair of headphones and sent them out to record local high school bands and orchestras. I haven't talked to him in a while but according to his website he has changed the way he does business. He now is offering lots of other services and he also offers to get your mechanical licenses for a fee. He also offers CD production and CD authoring as well as "mastering". The last time I was at his "studio" it was a converted porch with really bad acoustics and Mackie 824 speakers but it seems to be working for him and today that is the name of the game.

The idea of selling CDs to parents to pay for the recording might have worked a couple of years ago but almost all students and some parents are tech savvy enough to take your CD and make copies of it for friends and family. So one person buys a CD and then everyone in the band, orchestra or choir has one. They use their computer to make the copies and their Epson or HP printer to print on the CD.

Lets face it. The days of making enough money to live on by doing remote recordings are gone. If your part of the country is still OK then you should count your blessings but you should also know that soon you will run into the same problems as everyone else has. In this day and age with hand held digital recorders for less than $400 and HD camera for less than $1000 everyone can have their own AV recording setup. Even if they use it for recording two or three concerts that their family is in they have not spent anymore money than if they were just doing "home movies".

We all have to diversify and get into other things because just doing on location recording is not going to pay the bills anymore and even if you have the best equipment in the world no one in today's economy is going to pay you what you are really worth.

Good topic AND lots of really GREAT answers.

[Thomas W. Bethe]

Originally Posted by Corran

That's a possibility (that I have/am exploring), but the problem is copyright. If one were to build their business around selling CD's, you would think eventually a composer or agency would get wind of it and you could be in serious trouble.

Now personally, I think selling CD's of a band concert should be under the "Fair Use" policy. The students/parents buy it as an "archival" recording, and the student was personally involved in the music-making. If a band director is allowed to have an archival CD, as would an orchestra soloist, why can't every one of the musicians in a performance get one too? It's not like the CD is being put on Amazon for public consumption.

That's probably fodder for a whole other thread though.

Ww do the mechanical rights for the groups we record and it is NOT fun and can get very expensive especially if they are going to do over 200 CDs. But it is the law and it is definitely NOT "Fair Use" see Fair Use in a Nutshell so if the groups you record are not getting their mechanical licenses they could be in for some problems down the road and so could you.

Recently we were contracted by a publisher who told us that they had seen our website and noticed that we were doing remote recording and were producing CDs and DVDs and wondered if the groups we were recording were paying for their mechanical license fees? We wrote back to them and told them to check their files since we had already obtained the mechanical licenses for their material from Harry Fox for everything we had recorded.

If the publisher contacted us about our website and noticed that we were doing remote recording and making copies for groups you know these publishing companies are looking at a lot of sites such as ours and starting to ask questions. All our ducks were in order but I am sure there are a lot of groups that don't take the time to do the research or pay the money for the proper licenses. It is only a matter of time before they get a call from the publisher asking if they have paid for the mechanical rights. Everyone is hurting and everyone is looking to make sure they are not taken advantage of.

Copyright infringement fees can be EXPENSIVE and you should tell your groups that even IF they are non-profits it does not mean that they don't have to pay for their mechanical licenses. You might want them to look at this from the WWW Copyright Infringement Penalties

[Plush]

That's right.

Corran, an archival copy is for the conductor and for no one else.
There is an exception and special rule in the union handbook that states that an archival copy recording may be made for study by the conductor.

If you are selling more than one copy without obtaining permissions that is prohibited.

You have to have a license to record and sell copyrighted material. This license is obtained from the Harry Fox Agency in NYC. They act as the interface between the recording company and the music publishers.

Sometimes permissions can be negotiated with the publishing company directly.

[NorseHorse]

Originally Posted by Corran

That's a possibility (that I have/am exploring), but the problem is copyright. If one were to build their business around selling CD's, you would think eventually a composer or agency would get wind of it and you could be in serious trouble.

While this makes sense in theory, it hasn't held up in practice (composers and agencies know all about this). In any given year since the mid-80s, there have been hundreds of engineers regularly recording high school concerts and selling cassettes, CDs, and now DVDs.

I have yet to hear of a single case where either the school or recording company have been sued for this practice. Why? BECAUSE IT'S GOOD FOR THE COMMUNITY.

Publishers (especially in the band community) understand that someone selling 20 CDs at a band concert does not hurt their business. It is common practice, and unless you are making CDs of the State Convention and are able to sell 200 copies of a single performance (like Mark Records, who also often offers the recordings nationally), there really isn't ANY WAY to make recordings of concerts available to band members / parents / grandparents. Publishers understand this. The only person that would really benefit from this arrangement is Harry Fox. Why? ...because if you sold 20 CDs of a concert where 11 pieces were performed, you would be paying $165 dollars in Harry Fox processing fees to pay 11 publishers $2-$3. And only about $25 would be left to print and ship CDs! Until publishers want to devise another way to get payments (which I am definitely open to!), they have consistently left little guys alone.

In some cases where a group printed nice CDs, I sent them directly to a number of composers. They have been uniformily encouraging. The CD is worth more than the few quarters I could send them instead, anyway.

Related threads:

Oh my! - Royalties & licensing fees for CDs: Free, Archival & Unreleased.

Legal Issues: Have any of you been sued in audio / recording related cases?

[hbphotoav]

Just to be clear, we're talking about two different things in the past few posts... mechanical rights to reproduce performances of copyrighted materials for resale, and "avoidance" of higher rates from union musicians because the performance is recorded for a true archival purpose. I sometimes make recordings from church performances (one church, where my wife is a member, accompanist and chorister) and supply ONE recording to the choir director. It is my gift to the music ministry of the church. I do not sell to the choir members (although a few have received cuts of solo parts, etc) or church members, or other interested parties; nor do they post the results to their website. The union musicians (about half the orchestra, usually, the rest being church members) know that, and we have no problems with the contractor or union rep.

But they are separate entities, who both need to be dealt with.

[cirrusboy]

its all record sales, the product is not selling.
no more big money, and we have to work twice as hard
to make a fraction of what we did in the last two 4 decades.
we have all become back yard mechanics of sorts,
we get paid a reasonable amount of $ for a reasonable amount of work,
need an oil change ?

[Corran]

Just to be clear guys, I know that the "Fair Use" policy doesn't extend to all the musicians in a performance. I just personally think it should, since many musicians want to have that personal copy to listen to their performance. I have dealt with Harry Fox and all that and I know it is not fun and very expensive.

As Norse mentions, the only one really making money off licensing is the licensing agency, not the composers. I do know of a company in Atlanta who supposedly handles all licensing when doing large band festivals, but as I understand they charge a huge fee just to record AND the CD's are $20 or $25 each. I'm not sure how they manage that price with students/parents.

Thomas, that's an interesting story. You are the first person I've heard of getting contacted out of the blue about licensing fees.

[kstrauss]

Originally Posted by Corran

Just to be clear guys, I know that the "Fair Use" policy doesn't extend to all the musicians in a performance. I just personally think it should, since many musicians want to have that personal copy to listen to their performance.

You need to do a mental exercise, ask the following questions: how does it affect the marketplace? What is the nature of the use? In the case of a live concert recording, providing copies to participants and family members probably does fall under fair use - effect on the market is minimal and the nature of the use is more or less archival – so you don't need to obtain a license. However if you sell CDs to the public, then it fails the above tests and you will need to pay licensing. (BTW, it does not matter whether you sell CDs or give them away.) You also need to consider the nature of the work itself. Some publishers, Disney for example, are more aggressive about pursuing copyright infringement so even though you may be correct in claiming fair use, you may not be able to afford to litigate; in those cases it might be best not to give CDs to anyone other than the conductor. Also, for theater works recording rights are often stipulated in the rental contract – Disney for example, specifies no archival recording of any kind for their musicals. (However it is generally acceptable for the presenter to modify the contract to allow archival recording.)

Originally Posted by Corran

As Norse mentions, the only one really making money off licensing is the licensing agency, not the composers..

This is incorrect. Harry Fox is a middleman that distributes royalty payments for a small percentage of the fee. The majority goes to the publisher who then distributes payments to the composer based on a contractual agreement. You have to realize that copyright is a good thing, it was established so composers and other creators of intellectual property could make a living off of their creations. By paying a licensing fee you are putting money into a system that encourages creative work. As members of the arts community we should encourage our clients to abide by the law and pay license fees where appropriate.

[NorseHorse]

Originally Posted by kstrauss

This is incorrect. Harry Fox is a middleman that distributes royalty payments for a small percentage of the fee. The majority goes to the publisher who then distributes payments to the composer based on a contractual agreement.

This is incorrect [for small amounts]. Harry Fox charges $15 per song FEE when you are licensing less than 2,500 copies - not a percentage. That fee does not include the mechanical payments. This why Harry Fox - the middleman - is the winner for short-runs.

[Thomas W. Bethe]

Originally Posted by kstrauss

You need to do a mental exercise, ask the following questions: how does it affect the marketplace? What is the nature of the use? In the case of a live concert recording, providing copies to participants and family members probably does fall under fair use - effect on the market is minimal and the nature of the use is more or less archival – so you don't need to obtain a license. However if you sell CDs to the public, then it fails the above tests and you will need to pay licensing. (BTW, it does not matter whether you sell CDs or give them away.) You also need to consider the nature of the work itself. Some publishers, Disney for example, are more aggressive about pursuing copyright infringement so even though you may be correct in claiming fair use, you may not be able to afford to litigate; in those cases it might be best not to give CDs to anyone other than the conductor. Also, for theater works recording rights are often stipulated in the rental contract – Disney for example, specifies no archival recording of any kind for their musicals. (However it is generally acceptable for the presenter to modify the contract to allow archival recording.)

I think the differences between PUBLIC and PARTICIPANTS is a very narrow one. If Mommy and Daddy want to give their son or daughter's Band or Choir CDs away for Christmas presents that takes it into the PUBLIC category. Of someone in the audience wants to buy a CD then that is also in the PUBLIC catagory. I am not a copyright lawyer but when I worked at the local college we went to have a 1 hour meeting with a copyright lawyer and he got paid somewhere around $500 for the meeting. They are very sharp and as he explained the law to us so much has to do with the CONTEXT of what is being done. It is 1000 shades of gray and not black and while by any stretch of the imagination. He basically told us when in doubt get the permission. Harry Fox is NOT the easiest place to work with and a lots of times they don't represent the publisher so you have to go back to the publisher and sometimes they are in Europe and it is NOT easy to get them to grant licenses. In one case recently we were referred to ASCAP, BMI and SESAC to get copyright permission by a European publisher when all we wanted was the mechanical license.

I have one of my interns do the paper work and it can take him up to 10 hours per concert to do the legwork. The other problem today is there are some many versions of the songs and you have to get just the right one or you could be in trouble.

NORSEHORSE...

Here is what you said

While this makes sense in theory, it hasn't held up in practice. In any given year since the mid-80s, there have been hundreds of engineers regularly recording high school concerts and selling cassettes, CDs, and now DVDs.

I have yet to hear of a single case where either the school or recording company have been sued for this practice. Why? BECAUSE IT'S GOOD FOR THE COMMUNITY.

Publishers (especially in the band community) understand that someone selling 20 CDs at a band concert does not hurt their business. It is common practice, and unless you are making CDs of the State Convention and are able to sell 200 copies of a single performance (like Mark Records, who also often offers the recordings nationally), there really isn't ANY WAY to make recordings of concerts available to band members / parents / grandparents. Publishers understand this. The only person that would really benefit from this arrangement is Harry Fox. Why? ...because if you sold 20 CDs of a concert where 11 pieces were performed, you would be paying $165 dollars in Harry Fox processing fees to pay 11 publishers $2-$3. And only about $25 would be left to print and ship CDs! Until publishers want to devise another way to get payments (which I am definitely open to!), they have consistently left little guys alone.

In some cases where a group printed nice CDs, I sent them directly to a number of composers. They have been uniformily encouraging. The CD is worth more than the few quarters I could send them instead, anyway.

I think you are giving some erroneous information out about the need for mechanical license and you could get yourself and the person taking your advice into some really murky waters. I understand where you are coming from but the minute the CD goes into the public arena you need to get the licensing. As I have pointed out above this is a really slippery area and the minute you give the CDs to someone who is not a participant the laws drastically change. Maybe you should NOT put this in a public forum but...the choice is up to you. Just because you personally have not heard of anyone being sued does not make it so.

FWIW and YMMV

[NorseHorse]

Nothing I have said is erroneous, and thus far, I haven't given any advice.

My examples and descriptions accurately represent what it costs to license short-runs through Harry Fox (not counting administrative time) and also accurately represent "what's going on in the remote business" of recording high schools in particular. Yes, I know what I said; this isn't a new industry.

FWIW and YMMV

Steve, maybe the last group of posts should be moved to the "Royalties" thread?

[Thomas W. Bethe]

Originally Posted by NorseHorse

Nothing I have said is erroneous, and thus far, I haven't given any advice.

My examples and descriptions accurately represent what it costs to license short-runs through Harry Fox (not counting administrative time) and also accurately represent "what's going on in the remote business" of recording high schools in particular. This isn't a new industry.

FWIW and YMMV

You are probably correct in your figures for Harry Fox but that is not what I was referring to.

[Sevitzky]

One of the most useful things on GS, and what could save many posts from the shitter, since it's hard for many of us to resist online taunts:

Upper left corner of your screen: click "User CP"
Under Settings and Options: "Edit Ignore list"

Okay, moving on. Please.

-----

I wonder why no-one is talking about about the distribution model. Business works top down - the large scale of the war determines the battles you fight. But all I'm reading about is the battles. I just don't get how anyone could contemplate a business model based on media distribution, a 20th Century dinosaur, when everyone has a CD burner.

Niche markets aside - I'm talking about funding health insurance and retirement, not hobbyists, and not dreamers in their invincible 20's. Maybe everybody is content to bitch rather than take a good hard look at things, and actually toss out some new ideas.

And this whole *Quality*, ergo, carte-blanche-business-practices....is just.... .....interesting. I wish I could have saved recordings of conversations in the hallways where I worked 10 years ago. Anybody banging that pot and expecting the world to follow would get a nice case study.

Are my posts to long? No-one even flamed me...

Ah well...


"If an engineer talks about quality/viability on a forum, does it make a sound?"

[dougm]

Great thread and I have learned a few things.

In the interst of spreading knowledge, I have found the publishers are very helpful in getting the mechanical rights taken care of. The larger ones do this themselves, usually without any service fees added, or perhaps $5 per song.

Regarding folks undercutting your price, or a parent offering to do it for free. My best success has been to thank them for their past business, and to please keep me in mind for the future should my services be needed. They almost always come back.

Doug

[Thomas W. Bethe]

Originally Posted by dougm

Great thread and I have learned a few things.

In the interst of spreading knowledge, I have found the publishers are very helpful in getting the mechanical rights taken care of. The larger ones do this themselves, usually without any service fees added, or perhaps $5 per song.

Regarding folks undercutting your price, or a parent offering to do it for free. My best success has been to thank them for their past business, and to please keep me in mind for the future should my services be needed. They almost always come back.

Doug

Since we took this job over of getting the mechanical licenses for our non profits two years ago we have not found the publishers to be very cooperative or inexpensive. Fees can range from FREE to $30.00 per song or more for 200 CDs. Sometimes it takes three or four phone calls over a couple of days to track down who actually owns the copyright for a certain arrangement of a song and then more emails and phone calls to get their permission. In one case we have been waiting since before the winter holidays for a publisher to get back to us. Some publishers do not use Harry Fox and you have to negotiate with them on a one to one basis. In one case the publisher would not grant a mechanical license with out a lot of back and forth and wanted audited proof of just how many CDs the group was selling.

I am glad you personally have not run into this maze.

I agree that when confronted with the loss of a group to someone else the best idea is to let them know you understand but you also want to leave them with a good feeling about you so when the other person does not work out they will call you back. It is better for all concerned NOT to burn your bridges behind you.

[locutus]

How many people here get involved in the mechanical licensing process for their clients? How many just turn over masters and let the client handle licensing and reproduction?

While I wish I could just do the recording and walk away from the messy stuff, I have found too often that musicians/groups are too clueless, confused, or disorganized to get through the process. Handholding can take twice as long sometimes, so to get a project actually complete, and paid, I will step into the process.

I struggle with this not only from a time/stress standpoint, but from a legal one. Do I increase my legal liability by being involved? Even though I am just a conduit, not an end holder of ownership, it seems too easy to be roped in. I am not a record label, and don't want to be in that position. But "Guilty by association" is too subjective.

Nathan Eide

[RobAnderson]

I think part of the problem is the model of Mechanical licenses is out of date. It was designed in the days where you knew how many records you were going to press on the first run. It was transferable to CD's, but not to the current situation where one no longer needs to make physical copies.

I must confess I am ignorant as to what some of the models are for internet distribution as far as licensing goes - how does one cover mechanicals for downloads? Do you pay for a license for a certain number of downloads and then buy more when that is used up?

Originally Posted by locutus

How many people here get involved in the mechanical licensing process for their clients? How many just turn over masters and let the client handle licensing and reproduction?

While I wish I could just do the recording and walk away from the messy stuff, I have found too often that musicians/groups are too clueless, confused, or disorganized to get through the process. Handholding can take twice as long sometimes, so to get a project actually complete, and paid, I will step into the process.

I struggle with this not only from a time/stress standpoint, but from a legal one. Do I increase my legal liability by being involved? Even though I am just a conduit, not an end holder of ownership, it seems too easy to be roped in. I am not a record label, and don't want to be in that position. But "Guilty by association" is too subjective.

Nathan Eide

[dougm]

Originally Posted by Thomas W. Bethe

Since we took this job over of getting the mechanical licenses for our non profits two years ago we have not found the publishers to be very cooperative or inexpensive. Fees can range from FREE to $30.00 per song or more for 200 CDs. Sometimes it takes three or four phone calls over a couple of days to track down who actually owns the copyright for a certain arrangement of a song and then more emails and phone calls to get their permission. In one case we have been waiting since before the winter holidays for a publisher to get back to us. Some publishers do not use Harry Fox and you have to negotiate with them on a one to one basis. In one case the publisher would not grant a mechanical license with out a lot of back and forth and wanted audited proof of just how many CDs the group was selling.

Yeah - the cost through Harry Fox for 200 CDs would by $33.20. Hal Leonard is one of the publishers that just charge the 9.1¢ per copy - no service fee, but they have a $15 minimum.

Originally Posted by Thomas W. Bethe

I am glad you personally have not run into this maze.

I am having a tough time with an Australian piece. You submit through APRA/AMCOS an "Audio Manufacture Licence Application". A month has gone by - nothing yet.

I am curious how the slowdown in CD releases have affected the publishers' mechanical rights collections. Is that published anywhere, year over year?

Doug

[kstrauss]

Originally Posted by NorseHorse

This is incorrect [for small amounts]. Harry Fox charges $15 per song FEE when you are licensing less than 2,500 copies

I see, Sorry I did not read your post completely. Yes, for small runs the processing fee could exceed the license, in fact Harry Fox won't grant a license for less than 25 units. In this case you are caught in the middle, but on the other hand, litigation follows money so it's unlikely you'd be sued for distributing 25 CDs. Also keep in mind that any music published before 1923 is public domain so it's likely that many times you won't have to worry about copyright at all

Originally Posted by RobAnderson

I think part of the problem is the model of Mechanical licenses is out of date. It was designed in the days where you knew how many records you were going to press on the first run. It was transferable to CD's, but not to the current situation where one no longer needs to make physical copies.

You might be right, but no one has come up with anything better yet. Downloads/streaming is such a mess, publishers have no idea what to do. About a year ago I wanted to include a short video clip of our performance of Arabella on our podcast. Boosey and Hawkes wanted $2500 for the synchronization license for 1000 downloads, easily 20 times the standard synchronization rate. We frequently write live and archived streaming into music rental contracts and the fees vary from free to several thousand $$. Even ASCAP/BMI has no idea what to do about on-demand streaming (they call it interactive streaming), they offer only an "experimental license" for this which is very pricey. But I think eventually things will work themselves out, lately I've noticed that publishers are better able to deal with downloads (called PDD - permanent digital download) and Harry Fox now offers a PDD license via Songfile. As far as I know there is not a pay as you go way of licensing downloads, but you could license 100 at a time I suppose and go back for more when necessary.

[Corran]

I've been giving this some thought.

From what I understand, using copyrighted material for educational purposes is allowed under Fair Use. So let's say that I am a band director and I consider listening to performances to be an important educational tool (and I do!). I want every student in my band to have a reference copy of any concerts we give.

Almost every band I know of down here has a Band Fee that the students must pay to be in band. It can be as low as $150 and as high as $750, depending on the school and participation in marching band, etc., because the schools get $0 for a budget. Anyway, let's say the band director adds $15 or $20 to the total yearly fees. An average band is 200 members, that comes to $3000 or $4000. He then pays a recording engineer this in payment to record all concerts in the year (usually 2-4) and make one and only one CD per student.

To me, this scenario demonstrates a "Fair Use" - the students could be given letters documenting that these CD's are for educational purposes only and should not be copied (and if they do, it's not the school's or engineer's fault). It sidesteps selling copies to family that may go beyond "educational purposes." It also probably provides a better paycheck to the engineer than just trying to sell CD's at the concert, even after duplication costs.

This is just a scenario I thought of. I am going to investigate this idea with some local bands to see what they think. For some bands, an extra $20 in the fees is nothing, and if the school only does one concert per semester maybe it could be even cheaper.

[BrianHanke]

Originally Posted by Corran

From what I understand, using copyrighted material for educational purposes is allowed under Fair Use.

This is incorrect.

[joelpatterson]

The whole "you can just add 'insignificant' X-dollars to your fee and that would solve everything" is such a sensible approach, I've wondered why it doesn't happen more (on its own, say!)

And the only reason I can come up with: from "their" point of view, justifying each dollar of their fee is a labor-- and tacking on another $20 might not be the painless affair it might seem. Could be?

Originally Posted by joelpatterson

...I do keep pestering the Albany Symphony Orchestra with samples of my work...

Longtime fans of my melodrama will be suitably stunned with this little tid-bit-- orchestra in a hall with at least a 5-second reverb...!

4shared.com - online file sharing and storage - download Overture from Handel's Messiah Part II -- Bennington County Choral Society.mp3

[Corran]

Originally Posted by BrianHanke

This is incorrect.

Explain how please.


"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

Source:
U.S. Copyright Office - Fair Use

[kstrauss]

Originally Posted by Corran

Explain how please.


"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

Source:
U.S. Copyright Office - Fair Use

Take the example of a textbook used in a class. this is nonprofit educational use, so by your reasoning the instructor could photocopy and distribute it to his students. But if you look at it from the perspective of fair use test #4, effect on the marketplace, it does not pass because each photocopy will replace a book sale thereby denying the author royalties. So educational use is not automatically fair use.

I'll do the fair use mental exercise for you.

1. The purpose and character of the use: The CDs will be distributed as an archival recording to band members to be used for their own personal study.

2. The nature of the copyrighted work: This is to determine if the work is copyrighted in the first place. Any music pre 1923 is PD, so if the recording contains any music composed after 1923, or a post-1923 arrangement of a PD work, it is copyright protected.

3. The amount of the work used: Concerts generally contain entire pieces, or complete movements, a significant portion.

4. Effect on the market: It is unlikely that these CDs will adversely affect sales of commercial CDs of the same works since the students want the CD primarily to listen to their performance, not the specific works.

So your idea passes two of the tests and fails two. However the two it passes 1 and 4, are generally considered the most important. So it appears that you have a good case for claiming fair use. However, the nature of copyright law is that you will never know for sure until you are sued and the court makes a decision. The good news is that litigation follows money so it is unlikely that any publisher would sue you for giving CDs to band members, They would be unlikely to get any kind of $$ out of the suit and it could be very bad PR. More likely, if the publisher objects they will contact you (or the band director) and ask that you stop the practice. There are common sense exceptions, I would never give or sell copies of a Disney musical, for example, or anything that was currently in production on Broadway.

[BrianHanke]

Originally Posted by Corran

Explain how please.

kstrauss explained it quite well. Fair use generally only applies to excerpted sections of a copyrighted work. Is it okay for me to post a copyrighted musical recording on YouTube?

- Yes, if it is a short segment of the recording and it is being used in the context of commentary or criticism.
- No, if it the entire recording.

I'd say your proposal occupies a grey area. Most likely nobody will ever sue you over this since such a small amount of money is involved. On the other hand, there is a moral question when it comes to reproducing the music of composers who are still living and entitled to royalties.

Perhaps the most ethical course of action would be to personally contact the composers/arrangers/publishers involved to get permission to reproduce their material. Most likely they will agree, and then you can go ahead with a clear conscience. On the other hand, if one or more refuses then you have a solid reason to exclude that particular work from the recording.

P.S. You left out the most important section from that copyright.gov page:

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: "quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported."

[Corran]

Thanks for the clarification and discussion guys. It's nice to be able to discuss these issues and ideas here.

[gareth.h.rees]

Originally Posted by Corran

For some bands, an extra $20 in the fees is nothing, and if the school only does one concert per semester maybe it could be even cheaper.

But that doesn't really help when they say "Or I could get grandpa Joe with his Zoom to do it for free?" like you experienced. It would make a professional recording much more affordable for them though, and I can't imagine $20 making a massive impact to the students who join when they're spending up to $750 anyway!

Good plan, I think!