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This article is copyright 1999 by Antonio J. García and originally was published in Band & Orchestra Product News, November 1999. It is used by permission of the author and, as needed, the publication. Some text variations may occur between the print version and that below. It has been updated to reflect recent revisions in precedents. All international rights remain reserved; it is not for further reproduction without written consent. |
Understanding Copyright Law
by Antonio J. García
A recent B&O article on copyright law broadly pronounced: "The fact remains, it is wrong to copy music." This generalization is not always true. Copying can be perfectly legal, but one must know the appropriate limits. As an educator I have observed that when people learn what the law does allow, the restrictions seem more reasonable and observable. So let's learn the law.
Protection vs. Registration
Original works are protected from the moment they are completed in fixed form (sheet music, cassette, etc.). A convicted thief would pay you actual damages (profits the infringer had made). Registration (submitting an application form, fee, and sample "deposit" of the work to the Copyright Office) adds the additional benefit of statutory damages (from $200 per infringement up to perhaps $250,000 per infringement if willful for financial gain). You can register your works inexpensively as a collection of multiple works; and registration can take place at any time within the existence of the copyright (which now is generally life of the author plus 70 years).
Rights
The six exclusive rights of a copyright owner are to:
• derive from the work (i.e., arranging or dramatization);
• distribute the work (copies by sale or leasing);
• display the work (as in a dance or visual art);
• digitally transmit sound of the work (as in music over the Internet);
• perform the work (in all dramatic performances, such as theatrical and marching band settings; but in non-dramatic performances first-time-only, such as in stationary concert settings); and
• reproduce the work (i.e., copies).
These six rights may be subdivided, sold, or leased exclusively or non-exclusively–usually for a fee.
Fair Use
The law allows exceptions to the six rights via the doctrine of fair use, which weighs the following factors:
• purpose of your use (i.e., commercial vs. non-profit);
• amount you intend to copy in relation to the whole of the copyrighted work;
• nature of the work being copied (music, poetry, etc.); and
• effect of your copying upon the potential market value of the copyrighted work.
This last factor is the most critical in music education: most of our copying is not for commercial reasons, yet far more folios of trumpet concertos are sold to college students than to touring professionals. Thus if instructors give their students photocopies of the work, the market value of the publication is severely diminished.
"Fair use" can be confusing. The U.S. House of Representatives itself proclaimed that "no generally applicable definition is possible, and each case raising the question must be decided on its own facts."
Guidelines
Realizing this problem, the Music Educators National Conference, National Music Publishers' Association, Music Teachers National Association, and National Association of Schools of Music created with the House in 1976 the "Guidelines for Educational Uses of Music." Far from indecipherable, the "permissible uses" and "prohibitions" are brief in Circular R21: "Reproductions of Copyrighted Works by Educators and Librarians" (Copyright Office, p. 8). Permissible copying can be paraphrased as follows:
• copying to replace purchased copies which for some reason are not available for an imminent performance (copies to be destroyed later);
• for academic purposes other than performance, single or multiple copies of excerpts can be made so long as they do not comprise a performable unit or exceed ten percent of the work, the copies not to exceed one per pupil;
• a teacher or educational institution may make and retain a single copy of student performances used for purposes of evaluation or rehearsal; and
• a teacher or institution may make and retain a single copy of copyrighted music taken from recordings owned by that teacher or institution, used for the purpose of constructing exercises or exams; however, teachers may not distribute these copies to the students; the compilation has to be retained, such as placed on a library reserve where students can access the material but not remove it.
Prohibitions include:
• copying for the purpose of creating or replacing an anthology or compilation that would otherwise demand purchase by the students;
• copying workbooks, standardized tests, and other matter intended to be "consumable" in the course of study;
• copying for the purpose of performance or to substitute for the purchase of music (other than outlined above); and
• reproducing even permissible excerpts without including the copyright notice which appears on the original work.
These guidelines "state the minimum and not the maximum standards of educational fair use"; "there may be instances in which copying which does not fall within the guidelines...may nonetheless be permitted under the criteria of fair use." Teach these guidelines to all current and future music educators!
Videotaping TV
The "Guidelines for Off-the-Air Recording of Broadcast Programming for Educational Purposes," ratified in 1981 by the House Subcommittee on the Courts, Civil Liberties, and the Administration of Justice, do not have the force of law but are considered a retroactive part of the 1976 Copyright Act. The most pertinent of the nine guidelines are:
• videotaped recordings may be kept for no more than 45 calendar days after the recording date, at which time the tapes must be erased;
• videotaped recordings may be shown to students only within the first 10 school days of the 45-day retention period; and
• videotaped recordings may not be physically or electronically combined or merged to constitute teaching anthologies or compilations.
School Arranging
Much of the creative work we and our students do relies on the opportunity to arrange existing works for the instrumentation required. The law responds to different scenarios in an escalating manner:
• To arrange (as a student or teacher) a derivative work from a pre-existing one for the purpose of non-profit institutional performance, the letter of the law states that permission is necessary. However, there has never been a case where a copyright owner has argued that an in-school arrangement (without sale) harmed the owner–in fact, the owner stands to benefit from potential royalties (see next item). So the actual spirit of the law has indeed allowed teacher and student arrangers to create derivative works as educationally best serves.
• To perform the arrangement, no payment from the composer or arranger is required. Venues, including most schools, pay royalties to performing rights organizations such as ASCAP or BMI for that privilege.
• To sell recordings, you must obtain a compulsory license from and pay small royalties through the Harry Fox Agency (212/370-5330, <www.harryfox.com> or <www.nmpa.org>).
• To sell score and/or parts, you must seek permission from the copyright owner, who may grant it (usually for a fee) or deny it at will.
• To copyright your arrangement, you must have permission from the owner.
• If your derivative work has been commissioned by someone else as a "work made for hire," that arrangement either belongs to the pre-existing tune's copyright owner (if no permission had been sought) or to whomever received permission to copyright the arrangement. Musicians creating commissioned works should obtain a written agreement as to who owns the rights.
Finding the Owner
Since any or all rights to a work may have been sold the day after a CD or folio was published, the printed copyright notice is not a reliable source. The Copyright Office is willing to do a search for you–but for a non-refundable fee without guarantee of accuracy.
Contact the performing rights organizations: usually a call or visit to ASCAP (212/621-6000, <www.ascap.com>) or BMI (212/586-2000, <www.bmi.com>) will get you an answer free of charge within minutes. Then contact the owner(s) and seek permission!
Home Taping/Copying
Copyright law applies to public uses only. Home taping for private, non-commercial use–though hotly debated and impacting the market value of a work–has been upheld by the Supreme Court as legal. As an individual, this means you can legally copy something for personal viewing or study and even lend it to a friend–but as an educator, you cannot legally pass that material on to students without observing the restrictions of copyright law.
Resources
In addition to Jay Althouse's book (Copyright: The Complete Guide for the Music Educator, Alfred Publishing) referenced in the earlier article, I encourage you to seek information directly from the Copyright Office (information 202/707-3000, forms only 202/707-9100, <www.loc.gov/copyright>): it's very understandable. Besides Circular R21 already discussed, get Circular 1: "Copyright Basics," Circular 102: "Fair Use," and perhaps Circular 92: "Copyright Law of the United States."
Education!
Doesn't copyright law make more sense now? Aren't you more likely to observe rights and restrictions you understand? Learn the law and teach it to others. If the Music Publishers' Association would cease its full-page color ads asking persons to "report offenders to the MPA" and replace those with more black-and-white ads of same size educating readers as to the "Guidelines for Educational Uses of Music" it co-created in 1976, more teachers would certainly understand the law and likely observe it, rather than erroneously turn in colleagues to "Big Brother."
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Antonio J. García is a Professor Emeritus and former Director of Jazz Studies at Virginia Commonwealth University, where he directed the Jazz Orchestra I; instructed Applied Jazz Trombone, Small Jazz Ensemble, Jazz Pedagogy, Music Industry, and various jazz courses; founded a B.A. Music Business Emphasis (for which he initially served as Coordinator); and directed the Greater Richmond High School Jazz Band. An alumnus of the Eastman School of Music and of Loyola University of the South, he has received commissions for jazz, symphonic, chamber, film, and solo works—instrumental and vocal—including grants from Meet The Composer, The Commission Project, The Thelonious Monk Institute, and regional arts councils. His music has aired internationally and has been performed by such artists as Sheila Jordan, Arturo Sandoval, Jim Pugh, Denis DiBlasio, James Moody, and Nick Brignola. Composition/arrangement honors include IAJE (jazz band), ASCAP (orchestral), and Billboard Magazine (pop songwriting). His works have been published by Kjos Music, Hal Leonard, Kendor Music, Doug Beach Music, ejazzlines, Walrus, UNC Jazz Press, Three-Two Music Publications, Potenza Music, and his own garciamusic.com, with five recorded on CDs by Rob Parton’s JazzTech Big Band (Sea Breeze and ROPA JAZZ). His scores for independent films have screened across the U.S. and in Italy, Macedonia, Uganda, Australia, Colombia, India, Germany, Brazil, Hong Kong, Mexico, Israel, Taiwan, and the United Kingdom. He has fundraised $5.5 million in external gift pledges for the VCU Jazz Program, with hundreds of thousands of dollars already in hand.
A Bach/Selmer trombone clinician, Mr. García serves as the jazz clinician for The Conn-Selmer Institute. He has freelanced as trombonist, bass trombonist, or pianist with over 70 nationally renowned artists, including Ella Fitzgerald, George Shearing, Mel Tormé, Doc Severinsen, Louie Bellson, Dave Brubeck, and Phil Collins—and has performed at the Montreux, Nice, North Sea, Pori (Finland), New Orleans, and Chicago Jazz Festivals. He has produced recordings or broadcasts of such artists as Wynton Marsalis, Jim Pugh, Dave Taylor, Susannah McCorkle, Sir Roland Hanna, and the JazzTech Big Band and is the bass trombonist on Phil Collins’ CD “A Hot Night in Paris” (Atlantic) and DVD “Phil Collins: Finally...The First Farewell Tour” (Warner Music). An avid scat-singer, he has performed vocally with jazz bands, jazz choirs, and computer-generated sounds. He is also a member of the National Academy of Recording Arts & Sciences (NARAS). A New Orleans native, he also performed there with such local artists as Pete Fountain, Ronnie Kole, Irma Thomas, and Al Hirt.
Mr. García is a Research Faculty member at The University of KwaZulu-Natal (Durban, South Africa) and the Associate Jazz Editor of the International Trombone Association Journal. He has served as a Network Expert (for Improvisation Materials), President’s Advisory Council member, and Editorial Advisory Board member for the Jazz Education Network . His newest book, Jazz Improvisation: Practical Approaches to Grading (Meredith Music), explores avenues for creating structures that correspond to course objectives. His book Cutting the Changes: Jazz Improvisation via Key Centers (Kjos Music) offers musicians of all ages the opportunity to improvise over standard tunes using just their major scales. He is Co-Editor and Contributing Author of Teaching Jazz: A Course of Study (published by NAfME), authored a chapter within Rehearsing The Jazz Band and The Jazzer’s Cookbook (published by Meredith Music), and contributed to Peter Erskine and Dave Black’s The Musician's Lifeline (Alfred). Within the International Association for Jazz Education he served as Editor of the Jazz Education Journal, President of IAJE-IL, International Co-Chair for Curriculum and for Vocal/Instrumental Integration, and Chicago Host Coordinator for the 1997 Conference. He served on the Illinois Coalition for Music Education coordinating committee, worked with the Illinois and Chicago Public Schools to develop standards for multi-cultural music education, and received a curricular grant from the Council for Basic Education. He has also served as Director of IMEA’s All-State Jazz Choir and Combo and of similar ensembles outside of Illinois. He is the only individual to have directed all three genres of Illinois All-State jazz ensembles—combo, vocal jazz choir, and big band—and is the recipient of the Illinois Music Educators Association’s 2001 Distinguished Service Award.
Regarding Jazz Improvisation: Practical Approaches to Grading, Darius Brubeck says, "How one grades turns out to be a contentious philosophical problem with a surprisingly wide spectrum of responses. García has produced a lucidly written, probing, analytical, and ultimately practical resource for professional jazz educators, replete with valuable ideas, advice, and copious references." Jamey Aebersold offers, "This book should be mandatory reading for all graduating music ed students." Janis Stockhouse states, "Groundbreaking. The comprehensive amount of material García has gathered from leaders in jazz education is impressive in itself. Plus, the veteran educator then presents his own synthesis of the material into a method of teaching and evaluating jazz improvisation that is fresh, practical, and inspiring!" And Dr. Ron McCurdy suggests, "This method will aid in the quality of teaching and learning of jazz improvisation worldwide."
About Cutting the Changes, saxophonist David Liebman states, “This book is perfect for the beginning to intermediate improviser who may be daunted by the multitude of chord changes found in most standard material. Here is a path through the technical chord-change jungle.” Says vocalist Sunny Wilkinson, “The concept is simple, the explanation detailed, the rewards immediate. It’s very singer-friendly.” Adds jazz-education legend Jamey Aebersold, “Tony’s wealth of jazz knowledge allows you to understand and apply his concepts without having to know a lot of theory and harmony. Cutting the Changes allows music educators to present jazz improvisation to many students who would normally be scared of trying.”
Of his jazz curricular work, Standard of Excellence states: “Antonio García has developed a series of Scope and Sequence of Instruction charts to provide a structure that will ensure academic integrity in jazz education.” Wynton Marsalis emphasizes: “Eight key categories meet the challenge of teaching what is historically an oral and aural tradition. All are important ingredients in the recipe.” The Chicago Tribune has highlighted García’s “splendid solos...virtuosity and musicianship...ingenious scoring...shrewd arrangements...exotic orchestral colors, witty riffs, and gloriously uninhibited splashes of dissonance...translucent textures and elegant voicing” and cited him as “a nationally noted jazz artist/educator...one of the most prominent young music educators in the country.” Down Beat has recognized his “knowing solo work on trombone” and “first-class writing of special interest.” The Jazz Report has written about the “talented trombonist,” and Cadence noted his “hauntingly lovely” composing as well as CD production “recommended without any qualifications whatsoever.” Phil Collins has said simply, “He can be in my band whenever he wants.” García is also the subject of an extensive interview within Bonanza: Insights and Wisdom from Professional Jazz Trombonists (Advance Music), profiled along with such artists as Bill Watrous, Mike Davis, Bill Reichenbach, Wayne Andre, John Fedchock, Conrad Herwig, Steve Turre, Jim Pugh, and Ed Neumeister.
The Secretary of the Board of The Midwest Clinic and a past Advisory Board member of the Brubeck Institute, Mr. García has adjudicated festivals and presented clinics in Canada, Europe, Australia, The Middle East, and South Africa, including creativity workshops for Motorola, Inc.’s international management executives. The partnership he created between VCU Jazz and the Centre for Jazz and Popular Music at the University of KwaZulu-Natal merited the 2013 VCU Community Engagement Award for Research. He has served as adjudicator for the International Trombone Association’s Frank Rosolino, Carl Fontana, and Rath Jazz Trombone Scholarship competitions and the Kai Winding Jazz Trombone Ensemble competition and has been asked to serve on Arts Midwest’s “Midwest Jazz Masters” panel and the Virginia Commission for the Arts “Artist Fellowship in Music Composition” panel. He was published within the inaugural edition of Jazz Education in Research and Practice and has been repeatedly published in Down Beat; JAZZed; Jazz Improv; Music, Inc.; The International Musician; The Instrumentalist; and the journals of NAfME, IAJE, ITA, American Orff-Schulwerk Association, Percussive Arts Society, Arts Midwest, Illinois Music Educators Association, and Illinois Association of School Boards. Previous to VCU, he served as Associate Professor and Coordinator of Combos at Northwestern University, where he taught jazz and integrated arts, was Jazz Coordinator for the National High School Music Institute, and for four years directed the Vocal Jazz Ensemble. Formerly the Coordinator of Jazz Studies at Northern Illinois University, he was selected by students and faculty there as the recipient of a 1992 “Excellence in Undergraduate Teaching” award and nominated as its candidate for 1992 CASE “U.S. Professor of the Year” (one of 434 nationwide). He is recipient of the VCU School of the Arts’ 2015 Faculty Award of Excellence for his teaching, research, and service and in 2021 was inducted into the Conn-Selmer Institute Hall of Fame. Visit his web site at <www.garciamusic.com>.
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