Sheet Music & Copyright Law
A Closer Look at Fair Use | by Christopher C. Tubbs
Copyright laws are not the easiest to understand. In fact, reading complex stereo instructions might be a more pleasurable endeavor. It is important, however, for choral directors (and music teachers and artistic directors) to follow copyright laws because important people are depending on us to do so: musicians. Whether they are making a full living off their music, or supplementing their income by creating it, musicians lose money each time copyright law is loosely followed.
I like to look at it this way: If I’m driving down the road going over the speed limit, I have broken the speed limit law. While I might not be stopped and ticketed, I have indeed broken the law. Likewise, if I “choose” to make illegal copies of music, I may not get caught. But if I do, the repercussions will be more than just on myself. A teacher in a district (including teaching studios, private practices, or anywhere music is being taught) is also putting the district at risk to pay restitution in addition to themselves. In 2019, a Texas school district was ordered to pay $9.2 million in restitution because of repeatedly violating copyright laws.
Fortunately, the laws that protect creators (composers, artists, etc.) also have a fair use component. If one or more of the four fair use factors can be proven, then copyright has not been infringed upon and there is no violation of the law. While these factors are straight-forward, as with everything, they can be interpreted in slightly different ways.
- Purpose and character of the use is the first element of fair use that a judge will look at when deciding if any copyright has been violated. In other words, was the use of the material used in a commercial nature or for a nonprofit educational setting? If the purpose of the item in question was intended to bring about positive change, there is a better chance of finding it to be fair use. Example: An 8th grade student doesn’t believe that her classmates should line up according to height. To prove this point, the student hangs posters up in the hallways that include pictures found on the internet of places where people in line for something are not lined up by height. These pictures, however, were not owned by the student, and are therefore in copyright violation because they were used without permission. Was the purpose of this use of images intended to bring about positive change?
- The second factor for determining fair use is the amount that is used when compared to the work as a whole. In other words, how much of the original is being used? If you are copying a paragraph from Moby Dick, you are only using a short sample of the original. However, as in the example above with copying an entire picture, you are using the entire work. There is no set amount that can be copied for educational purposes, but a rule that is commonly used is 10% or less.
- Another factor for consideration of fair use is the nature of the work. If it is based on facts, the likelihood of finding fair use is likely. A phone book would be an example of a work that is based on facts. The information is readily available to the public and can be compiled by anyone in any format. Alternatively, an original composition from a living composer is not likely going to result in favor of fair use due to the nature of the work.
- The final factor in determining fair use is the market effect. Will making a copy to avoid a purchase have an effect on the market? This depends on the amount that is being copied. A few measures from a song used for score study will most likely not have an impact on the potential market for the song. Copying an entire song, however, will have an impact and therefore is not considered legal.
It is crucial to understand that even though the copyright law is complex, it is there to encourage the creation of new works, and this is something we can all stand behind. Imagine, if you will, that you create a new gadget that will make life better for everyone. To encourage you to keep creating new gadgets, you get paid for the original. If you were not paid for the original gadget, how likely are you to continue to create more? My guess is that the motivation you had for the first one would not be there for the next one, or the next. The same holds true for musicians and their compositions. Every time you copy a piece of music, you just may be taking away part of their motivation to create more.