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Music Library: Copyright

The copyright law of the United States (Title 17, United States Code) prohibits copying, in its entirety, any vinyl recordings, tapes or compact discs from the Music Library collection. Fair Use provisions do allow for copying of small amounts of musical material for direct educational use. Please ask at the Music Library Service Counter for more details.

The Music Library adheres to all copyright laws, including those dealing with public performance of sound recordings. Please see the Music Library’s policy on the Use of Sound Recordings at UWM Functions.

UW-Milwaukee has an Illegal File Sharing page that explains the University’s stand on illegal downloading, as well as a FAQ and articles relating to UWM cases. You may also view the UWM Appropriate Use Policy online.

The Law

Fair Use

Section 107 of the Copyright Law allows for the “fair use” of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Additional guidelines (H.R. Rep. No. 94-1476, and The United States Copyright Law: A Guide for Music Educators) permit multiple copies for classroom use under certain circumstances.

The following four factors, taken together, determine what constitutes fair use. The first three factors are usually important in determining the fourth.

1. “The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;”

This provision permits certain duplication of library materials for the purposes of scholarship, research, and teaching in all areas of music study. Students and faculty members may make copies of protected materials for such uses, and librarians are permitted to make one copy of protected materials for a user upon the submission of a signed request with the adjoining copyright disclaimer statement. Section 107 applies to all copyrighted works. Certain specific uses not in the non-profit educational domain can also qualify under this provision, for example when a paid reviewer quotes briefly from a copyrighted literary or musical work in a review.

2. “the nature of the copyrighted work;”

In evaluating this factor, case history has taken into account whether a work is published or unpublished, factual or creative. In general, unpublished and creative works have been given more protection by the courts than published and factual ones. MLA takes the position that most tools of music learning are creative works in themselves and therefore cannot by their very nature be appropriately evaluated on the factual or creative criterion. In addition, an evaluation of fair use should acknowledge that reasonable use of unpublished sources is critical to the advancement of music research.2 Conversely, fair use does not apply if a copyrighted work is intended to be consumed in the course of a class assignment (such as in the case of workbooks, text books, musical exercises, etc.).

3. “the amount and substantiality of the portion used in relation to the copyrighted work as a whole;”

This factor is related to the purpose of the use (no. 1 above), and is usually relevant in determining the degree of harm to the copyright owner (no. 4 below).

4. “the effect of the use upon the potential market for or value of the copyrighted work.”

Criteria used to determine adverse market effect include (a) accessibility of the work, (b) date of its creation or publication, (c) economic life of the work, (d) price, and (e) evidence of abandonment.

Interpretations of the Law

Materials in the Public Domain

What is Public Domain?

Mirriam-Webster Online defines it as:

“the realm embracing property rights that belong to the community at large, are unprotected by copyright or patent, and are subject to appropriation by anyone.”

Basically, if something is in public domain you are free to use it in any way you would like, however determining if something is in the public domain is sometimes difficult. Also, there is a difference between books and scores (or print material) and sound recordings.

Books/Scores

A general rule of thumb is that most scores published 1923 or before are most likely in the public domain. The Public Domain Information Project is a useful site that includes lists of songs that have moved into the public domain, a list of resources that can be used to prove something is in the public domain, links to legal and copyright-related sites for further research, and an extensive list of sites with materials that are copyright free.

Sound Recordings

As far as sound recordings, it is generally accepted that there are none in public domain and there will not be until 2067, due to the Sonny Bono Act. There is an explanation of the act in layman’s terms on the Public Domain Information Project site mentioned above.

Getting Permission

Permission to use materials, including music, must be obtained IN ADVANCE of the intended use.

Print Music

  • ASCAP, the American Society of Composers, Authors, and Publishers. Includes a searchable database of songs and composers.
  • BMI, Broadcast Music, Inc. Includes a searchable database of BMI-represented composers and artists.
  • MPA Copyright Resource Center, a guide to finding who owns the copyright to acomposition. Includes a form that can be printed and submitted to the owner.
  • SESAC

Recorded Music

Digital Materials

Most Internet Service Providers require that you ‘sign’ a non-violation agreement, also called “Terms of Service” or TOS. Here are a couple of examples of such agreements:

Reporting someone who has violated your copyright:

The Library of Congress Directory of Service Provider Agents lists contact information for all “Internet Service Providers,” including universities and colleges. (see “Case Law” for examples of how this has been used recently)

Case Law

Lest you think that legal action is rarely taken against people who violate copyright, here are some articles and websites that prove differently.

Websites

Articles

Bergman, Alan S. “An Original Or Copy? Understanding the Nuances of Copyright Infringement.” DOWNBEAT (DOWN BEAT), Jazz, Blues & Beyond 75, (2008): 94.

The writer discusses copyright law as it stands in regard to the actual copying of elements of a musical composition and the use of so-called samples. Advice for jazz musicians on registering compositions for copyright is provided.

Butler, Susan. “Copyright Showdown in File-Sharer Suit.” Billboard 118, no. 16 (2006): 11.

The article focuses on the amicus briefs regarding the copyright law in the U.S. filed by the Electronic Frontier Foundation and computer groups in February 2006. Seevral entertainment groups are turning a lawsuit against an alleged peer-to-peer file-sharer into a loaded copyright question. They want the court to rule that transmitting a sound recording from computer to computer over the Internet is not a distribution under copyright law. Provisions of the Copyright Act are disclosed.

Electronic Frontier Foundation. “White Papers” website: https://www.eff.org/wp (retrieved Dec. 20, 2011).

A collection of resources that may be useful to music fans caught up in the RIAA lawsuit campaign and the lawyers who defend them.

Electronic Frontier Foundation. “RIAA v. The People: Five Years Later.” website: http://www.eff.org/wp/riaa-v-people-years-later#7 (retrieved Nov. 30, 2009).

A continuation of the original web article, including viable legal alternatives.

Gardner, Eriq. “LEGAL ROUND UP.” Billboard 120, no. 36 (2008): 10.

A ruling that the Digital Millennium Copyright Act (DMCA) provides safe harbor to user-generated web sites which promptly remove copyrighted materials upon complaint is discussed. It is noted that the DMCA also allows victims of meritless takedown notices to seek damages, so copyright owners will need to consider the fair use doctrine before sending takedown requests.

Hamelman, Steven. “It’s a Legal Matter, Baby: Fair use Law and the Rock ‘n’ Roll Scholar.” Popular Music & Society28, no. 5 (2005): 577-594.

Hamelman analyzes recent legal developments in copyright, discusses their impact on his 2004 book on rock ‘n’ roll music, and then provides guidelines for aspiring authors in this field. The essay argues that scholars must not assume that lyrics can be quoted with impunity, and that to avoid repercussions they should prepare themselves for an arduous permissions process.

Saltzman, Jonathan. “Trial to Begin in Music Copyright Case.” The Boston Globe, July 28, 2009.

Four major record labels who sued a Boston University graduate student for illegally downloading and sharing music online plan to begin making their case before a federal jury in what is only the second such dispute in the nation to go to trial.

Werner, Nic. ““The RIAA will get you”, in UWM Post, Vol 51, No. 27 (April 16, 2007), p. 25.

Article reacts to RIAA targeting local UWM students in illegal downloading of music files.