Thomas Hassing
Musicians, here’s an opportunity to ask an Intellectual Property attorney questions about copyrights, trademarks, and other questions related to the music business. Ask your question in the comments section on this blog between November 20 and December 7th. Tom will answer them in a follow-up blog.
The comments section is at the bottom of the screen. If you don’t see it, scroll down a bit.
Thomas Hassing is an IP attorney with Immersion Corporation in San Jose, California. He received his degree in Computer Science from the University of Minnesota Institute of Technology in Minneapolis and worked as a software engineer and software engineering director for 12 years before joining the legal profession. He received his law degree from William Mitchell College of Law in St. Paul, Minnesota, and has over 23 years of experience in IP law, business and the performing arts, including international assignments in Walldorf, Germany, and Bangalore, India. Mr. Hassing is a registered patent attorney with the U.S. Patent and Trademark Office and is admitted to practice law in the State of California, the State of Minnesota and the District of Columbia.
Mr. Hassing currently serves on the Executive Committee of the IP section of the California State Bar. He is President of the Board of Trustees for sjDANCEco, a contemporary dance company in San Jose, and also serves on the Board of Advisors for the San Jose Chamber Orchestra. He writes opera with his wife, composer Mona Lyn Reese, and has run over 100 marathons.
I had a piece that used a quote from “Old Man River” in Showboat. It’s a comic piece, and it used about 16 bars of the melody with different words and harmonies. I assumed it would have been covered under the parody clause of Title 17. The publisher made me change it and write a new melody. Could you explain a little about fair use and parody. Thanks.
Hello Kurt.
Fair use is a long standing aspect of copyright law that allows for the limited use of copyrighted material without acquiring rights from the copyright holder. Whether a use is fair use depends on the facts of the case and is ultimately decided by the courts on a case-by-case after balancing the four factors listed in 17 USC § 107:
(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.
In the past, many types of uses have found to be “fair use”, including Criticism & Commentary, Parody, News reporting, Art, Scholarship and Research, Time shifting and Search Engines.
In the case of parody, courts look to the amount of the work used, how famous the work is, whether the parody would substitute for the original, and whether the parody was transformative in commenting on the original.
Because even if you win it is very expensive to defend against an allegation of copyright infringement for fair use, many publishers are risk adverse and will not publish any work that includes unlicensed quotes from other musical works. Unless you have a license, you therefore either have to remove the offending passage to allow for publication, or else find another publisher who is willing to accept the risk of publishing parodies. It’s one thing to write and perform parodies, it’s another to publish and distribute them because of the high risk associated with them. To avoid this issue, most artists and publishers of commercial parodies (e.g. Weird Al Yankovic) always obtain advance permission to use an underlying work before writing a parody.
Tom
Do the blanket licenses venues are required to purchase imply a permission to arrange? Aren’t there songs covered by the blanket licenses that don’t have published arrangements?
When a rock band performs a cover song in a bar, the bar has a blanket license that allows this, right? Is that any different from a choral arrangement on the concert stage?
Hello David.
I assume you are referring to the public performance licenses that venues pay to performing rights organizations such as ASCAP, BMI and SESAC. This is based on 17 U.S. Code § 106, (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly.
As long as the venue has a license from the copyright owner to perform the work publicly, you may perform any arrangement of the work that you like. The work may have originally been composed for symphony orchestra, but if you want to perform your arrangement for solo electric guitar that would be fine. However, a performance license is all that performing rights organizations offer. If you want to record your performance and then subsequently distribute a CD or music download you would be required to pay additional royalties. See Compulsory License for Making and Distributing Phonorecords http://www.copyright.gov/circs/circ73.pdf.
Tom
Thank you!!
I know copyright is only as good as its enforcement. Can you give some advice for independent composers about how to find instances of infringement and what to do when they are found?
Hello Nathan.
Enforcing a claim of copyright infringement can be very complicated and costly and will greatly depend on the facts of your case. If you suspect that one or more of your works has been infringed then you should always seek professional legal advice from qualified counsel. Many copyright or arts & entertainment attorneys will offer new clients a free 30 minute initial consultation so you can explain your problem(s) and they can then give you more specific advice on possible remedies and costs.
Tom
Are arrangements performed at an educational institution for no charge subject to all the same licensing requirements as those performed at commercial venues for profit?
Hello Tanner.
Yes, generally arrangements performed at educational institutions are subject to the same licensing requirements as other venues unless they fall into one of several narrow exceptions:
1. Fair Use. Under 17 U.S. Code § 107, fair use applies for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, but the four factors for fair use described in my earlier post still apply.
2. Exemption of certain performances and displays. Schools are allowed under 17 U.S. Code § 110, (1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction.
3. Under 17 U.S. Code § 110, (4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if—
(A) there is no direct or indirect admission charge;
There are additional exceptions but these are the main ones. Unless one of the exceptions apply, the educational institution should be following the same licensing requirements as everyone else. However, this area of the law is complicated and it’s easy to make mistakes, so even if a school’s legal counsel has given clear guidance the faculty still might be be doing it wrong. I suggest that you contact the school if you have questions about a specific performance or arrangement.
Tom
Hi Tom, long time! I am trying to find out who (if anyone) now owns the copyright to the original Mexican film, “La Perla”, with screenplay by John Steinbeck (which predates his novella “the Pearl” but tells the same story essentially). Also the rights to the original version of the short story published in Women’s home companion (before the novella/book version). Web searches don’t tell me much. Any tips? The novella book itself has been tied up in in lawsuits between the first wife’s heirs and the publisher, agency, and 3rd wife’s heirs, and the agency is non-responsive (tried for 8 years to get an option). I”d be glad to discuss on the phone as well if you have time. Please say hi to Mona!
Best,
David Avshalomov
Hello David.
Please call me to discuss this issue by phone. Many thanks.
Tom
Tom, thanks, will do. Could you give me some time windows?
Best,
D A
A question came in to me from someone else. This is also on fair use. A composer is making a derivative work for educational purposes. He is copying directly from the score, but he is counting measures and making sure he uses less than 10%. Is he covered under fair use?
Hello Kurt.
As I indicated in my previous post, whether a use is fair use depends on the facts of the case and is ultimately decided by the courts on a case-by-case after balancing the four factors listed in 17 USC § 107. There is no set formula or percentage use that automatically qualifies as fair use. For example, in one case a magazine article that used 300 words from a 200,000-word biography written by President Gerald Ford was found to infringe the copyright of Ford’s autobiography. Even though the copied material was only a small part of the autobiography, the copied portions were among the most powerful passages in the autobiography. [Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985)].
Educational or classroom use is only one factor to consider when determining fair use, and ultimately the composer should seek advice from qualified legal counsel if he or she has a question about derivative works and fair use.
Tom
I am a classical composer, live in CA and have a signed contract with Georgia Symphony Orchestra (suburb of Atlanta) for $7000 which they have not paid since Feb. 2011, SOL 6 years from date of breach. I would like to have A GA atty represent me in small claims court, but so far have not been able to find an attorney that will do this because of the small amount–also don’t know anything about any attorneys there. Have tried Lawyers for the Arts in CA and GA and legal aid in both states–no go. Can you recommend a reputable attorney in Atlanta, maybe a new attorney who would take it on a contingency basis–it’s a pretty open and shut case. Is small claims the best route? Thanks for any help you can give with this issue!
My question is about a friend’s excellent translation (into more vernacular American English) of the text for Stravinsky’s L’Histoire du Soldat. I’ve done it twice now– it’s brilliant, and audiences really love it. He’s incorporated the stage directions into the narration, a necessity when it’s being done by a single stationary narrator, as opposed to a staged production with narrator, Soldier, Devil, and various other characters.
Schirmer handles rental of the parts and score, and not very well, IMO. You still can’t buy parts for it (I believe this edition is from the 1960s); and although it premiered in 1918, those early parts don’t seem to be anywhere online.
Nevertheless, there’s no language on the score etc. forbidding a different translation from the original French– and that original text is from 1918, or course.
I feel my anonymous friend should make his version available, for a fee, or even free if he doesn’t care about the money. The other idea would be to sell it to Schirmer, although I wouldn’t trust them to get it right, I’m afraid! Unfortunately, he’s very fearful of anyone finding out that he’s done the translation, out of a generalized panic about copyright. My feeling is that he’d be safe. How would you suggest researching this issue?
And THANKS for the kind offer of your mate’s help, Mona!
Hello Maria.
Nice to hear from you again. I am still “green” with envy after seeing you in green makeup during the performance of “The Green Children” many years ago when I was writer-in-residence at the Twin Cities Opera guild.
A translation of a work still under copyright is a “derivative work”, and you cannot publish or distribute a translation without permission from the original copyright owner. However, this does not apply if the work is in the public domain.
Because Igor Stravinsky’s L’Histoire du Soldat, (The Soldier’s Story) was originally published in 1918, then Stravinsky’s original version is now in the public domain because it was published before 1923. As long as your friend translated from the public domain version of the original French then he does not need permission to distribute his translation. (Be careful not to make derivative works from newer arrangements, as those newer arrangements might still be under copyright if they were published after 1923.)
You can find the public domain original version of the complete score and parts for L’Histoire du Soldat here:
http://imslp.org/wiki/L'histoire_du_soldat_%28Stravinsky,_Igor%29
Tom
(Hi Tom! Say hello to Mona from Sue and me!)
Serious Thursday morning rabbit hole! I followed your link and started looking at copyright dates, and it turns out that the trail is very twisty. The full score wasn’t published until 1924, and that’s the first time the narration was included. The 1920 edition is a clarinet/violin/piano suite, and the 1922 edition is a piano score.
The NY Phil scan of Bernstein’s copy of the J & W Chester 1924 score is here:
http://archives.nyphil.org/index.php/artifact/6d90fc2a-08d6-468a-b805-10d936385e4b/fullview#page/1/mode/2up
There’s a great reference to the history of the narration here, in the front matter to the facsimile edition of Stravinsky’s sketches:
https://books.google.com/books?id=jYTiK1bwjqIC&printsec=frontcover&source=gbs_ViewAPI&output=embed#%257B%257D
A synopsis of editions is on page 6, and start reading at page 32 for a history of the narration.
The history of the narration for L’Histoire du Soldat is where it gets twisty. Ramuz never published the text performed at the 1918 premiere. He published his own edition of the text in 1920, revised it for the 1924 Chester score, and did further revisions for 1929, 1940 and 1944 editions.
The good news is that a complete typescript of the text, from 1918, as read at the premiere with annotations both by the narrator, Elie Gagnebin, and Ramuz, is in the collection of the Bibliotheque Cantonale et Universitaire de Lausanne. And, they will do scans of documents for researchers:
http://www.bcu-lausanne.ch/services/reprographie/reproduction/
Or, it’s an excuse for a great road trip. 🙂
Rick
(And the J & W Chester rights ended up with Music Sales Ltd, who are G Schirmer and others.)
(And no, I don’t know why I started digging, but it was fun!)
Hi Rick,
So nice to hear from you.Thanks for responding to Tom’s guest blog. xoxo Mona
I’d like to program a Disney concert for my NFP community choir in the next year. It won’t be recorded ($$$$) or distributed and I won’t use copyrighted images in marketing, but could I be sued for using the name Disney in the title “Disney’s Greatest Hits?” Should I make the concert theme more nebulous like “Animated Movie Hits” or something like that?
I read your question to Tom. He says OK to name your concert Disney’s Greatest Hits.
I’m considering a work that would involve the text of Oscar Wilde’s letter, De Profundis. The original letter was written and published (in part) prior to 1923. The original manuscript is displayed on the website of the British Library. However, I’ve read that somehow, his estate claims copyright protections in the US over some of his works. How can I figure out whether or not this particular work is in the public domain? And how in the world can an estate hold a copyright for someone who died more than 100 years ago?
I forgot to click follow! Please ignore this reply. 🙂
I’ll forward this message to Tom right away. These copyright issues are awful for composers.I’m lucky to be married to Tom! He’s an avid composer and artist support person.
Thank you! I’ve struggled with copyright more than once! This post is an absolute blessing!
Oscar Wilde died in 1900, and all of his works were published before 1923. Therefore, everything written by him is in the public domain including De Profundis. It may be that copyright exists in new editions of his works, but only for any new material added by the editor for that edition.
This is great news! Thank you for confirming that. I appreciate the help.