[Smt-talk] [Fwd: Re: MIDI Files and Copyright]

Wed May 26 06:48:34 PDT 2010

Hello Colleagues:  Nicolas Meeus' post about copyright of music
scores/recordings (see below) helps to clarify a rather complicated issue.
(To make matters more complicated: Copyright laws can vary from country to
country, and they have evolved over time, making it difficult to make any
blanket statements that are applicable in all situations.)   But there are
a couple of points which I'd like to augment/clarify:

1) "I presume that music publishers usually do not buy the music that they
publish: they act as agents for the composer and as the source of his
or her royalties."

The traditional model in the US is that when a publisher takes on a piece
of music for publication, the composer signs over the copyright of the
music to the publisher (usually for free).  The composer thus no longer
"owns" the music.  Usually, the publisher will give the composer a few
free copies of the music upon publication; after that, the composer must
purchase the music just like anyone else (but the publisher usually offers
the composer a 50% discount to purchase their own music).

Whenever the music is purchased, rented, or recorded, the publisher gives
the composer a contracted percentage of the income (i.e. a royalty): for
sales, the traditional industry standard was only 12.5% of the price, but
rentals and recording percentages are usually 50%.  Royalties for
performances (which include radio, television, and internet broadcasts)
are usually not handled through the publisher; rather, each country has a
performing rights organization (PROs, e.g. ASCAP and BMI in the US, PROCAN
in Canada, SACEM in France, etc.) which collects licensing fees for
performances and then distributes royalties to the composer (50%) and the
publisher (50%).  (Opera, music theater, and ballet performances aren't
handled through PROs; rather, they must be licensed directly with the
publisher.)

While this might seem arcane and usurious, it actually reflects the
business expenses/risks that a music publisher traditionally took on. 
Music engraving is very labor-intensive.  And when engraving was done on
metal plates, the master plates for hundreds of pages of scores/parts had
to be stored.  Initial runs usually printed 5,00-10,000 copies; these had
to be stored/protected (and insured).  Etc., etc.

This traditional model of publishing obviously is being supplanted with
the advent of computer desk-top publishing, print-on-demand resources,
internet downloading of scores and recordings, etc.  However, the music
publishing industry has been very slow in adapting to the changes and
adopting a new business model.  The dinosaur is dying a slow, painful
death; but a new, viable model hasn't yet evolved.

(Aside:  The business model for published poetry, novels, plays, etc., is
usually different, i.e. the author usually retains the copyright of the
textual content.  However, the publisher usually owns the typographical
layout, and any editorial emendations.)

2) "Even short quotations for scholarly or educational purposes usually
are not allowed."

Actually, US copyright law has an explicit exemption for the usage of
short quotations for scholarly publication.  And there are also exemptions
for certain types of educational usage.  However, these exemptions are
very limited, and are much narrower than most of us assume.  For example:
It is illegal to photocopy/distribute to your classes any excerpt which is
a "performable entity"; thus, even a single short piece from Bartok's
"Mikrokosmos" cannot be copied for your class or reprinted in a journal
without permission.)

Even though most teachers break the law regularly in their teaching, few
educational infringements of  copying are investigated and litigated (e.g.
cases where a teacher compiles an "anthology" of excerpts for a class, and
sells them at the college bookstore or Kinko's).  And most journals will
let an author know if permission is needed for any quotations in an
article.

3) "If the music itself is public domain, then the rights that may remain
linked to the score concern its graphic image and additional contents such
as fingerings, etc. So called "Urtext" editions (and others) involve an
editorial work that also remains protected. If our musical examples are
rewritten in a music notation software, they should better be copied from
public domain scores (see imslp.org). In any case, it would be up to the
modern publishers to prove that our examples have been copied from
copyrighted editions."

This point is correct, but can be augmented/clarified.  Even if the
"content" of a publication (i.e. the words of a poem, the musical content,
etc.) is in the public domain, a particular publication of that content
might still be copyrighted.  That copyright pertains solely to whatever
has been added by the new publication, i.e. fingerings, editorial
corrections, dynamics, preface/footnotes, and the typesetting/page layout.
 Thus, that edition of the music usually cannot be photocopied; however,
you can retypeset the musical content yourself (as long as you make sure
that you don't include anything added by the new edition).

Anthologies create a similar circumstance: The copyright notice in the
front of the anthology pertains only to the anthology (i.e. the
choice/order of selections, new typesetting (as opposed to copies of PD
editions (e.g. Dover editions, and the Burkhart Anthology)), the page
layout, and any commentary added.  If any of the pieces in the anthology
are copyrighted, there will be a separate copyright notice for each
selection, usually in a footnote or appendix.

I hope that this info helps clarify some of the complicated issues.
...Paul Siskind

**************************************************************
Dr. Paul A. Siskind                        Home:
Professor of Composition and Theory        Sweet Child Music
The Crane School of Music, SUNY-Potsdam    69 N. Main Street
Potsdam, NY  13676                         Norwood, NY  13668
(315) 267-3241                             (315) 353-2389
**************************************************************

---------------------------- Original Message ----------------------------
Subject: Re: [Smt-talk] MIDI Files and Copyright
From:    Nicolas MeeÃ¹s <nicolas.meeus at paris-sorbonne.fr>
Date:    Tue, May 25, 2010 5:46 pm
To:      "Yuri Broze" <yuribroze at gmail.com>
Cc:      smt-talk at societymusictheory.org
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I think that one must make a
difference between rights (a) on the music; (b) on its (printed) score;
(c) on its performance. 
 
â€“ So long as the music
itself is under copyright, any unauthorized reproduction, be it as
score or as performance, is illegal. Even short quotations for
scholarly or educational purposes usually are not allowed (which, let
me add, is a scandal). 
â€“ A publisher has additional rights on the score, its format, its
presentation, and the like. If the music itself is not yet public
domain, the rights on the music and those on its score often are
intermingled because the music is only accessible through its score. I
presume that music publishers usually do not buy the music that they
publish: they act as agents for the composer and as the source of his
or her royalties. 
â€“ A performance is owned by its performers, who usually have bought the
right to play. The publisher of the recording is, with respect to the
performers, in a situation similar to that of the publisher of the
score with respect to the composer. 
 
The situation of a MIDI file depends on what it records. If it is
produced by the score (say, through a notation software such as Finale
or Sibelius), it merely is another electronic form of the score. If it
reproduces an actual performance, then it is a recording. In the first
case, trouble may come both from the composer and the publisher; in the
second case, from the three of them. 
 
If the music itself is public domain, then the rights that may remain
linked to the score concern its graphic image and additional contents
such as fingerings, etc. So called "Urtext" editions (and others)
involve an editorial work that also remains protected. If our musical
examples are rewritten in a music notation software, they should better
be copied from public domain scores (see imslp.org). In any case, it
would be up to the modern publishers to prove that our examples have
been copied from copyrighted editions. 
 
So to say no recorded performance is public domain up to now (there has
been a discussion about the earliest, late 19th-century recordings, but
I did not follow the issue). Producing right-free performances (e.g.
with students) may not be easy. There exist softwares that allow a
realistic reproduction of a score without real performer(s); but the
work involved must not be light. 
 
In all cases, the matter of copyrights rests on intimidation: major
publishers (and public libraries !!!) have means to threaten us to
issues that we cannot face. I see two possibilities: 
â€“ we could organize ourselves as a scholarly lobby, able to counter
intimidation; 
â€“ we could make our opponents realize that our work actually promotes
their interests. I believe that IMSLP has done a tremendous job to this
effect. 
 
To sum up: all this is a mess! 
 
Yours, 
 
Nicolas MeeÃ¹s 
UniversitÃ© de Paris Sorbonne 
<a class="moz-txt-link-abbreviated"
href="mailto:nicolas.meeus at paris-sorbonne.fr">nicolas.meeus at paris-sorbonne.fr</a> 
 
 
Yuri Broze a Ã©critÂ :
<blockquote
 cite="mid:AANLkTilhjcWX27WMCAhsoKA3QChjZ0Z7RxEHwUgYlhLy at mail.gmail.com"
 type="cite">
 <pre wrap="">Just a followup,

I'm not current on this issue, but the legal question as I understand
it relates to whether a MIDI file constitutes a "score" or a
"performance."  If it's a score, then this falls under the domain of
publication rights, whereas if it's a performance, then the
restrictions are considerably different.  Essentially, playing a MIDI
is
a performance of the work, and therefore rights would go through
ASCAP, BMI, or another performing rights organization -- but only if
it's a *public* performance.  There is clearly nothing illegal about a
musician playing a popular hit at home for their friends.

Not an answer, but just another perspective.

Yuri Broze
314.910.3152
1637 N 4th St
Columbus, OH 43201

  </pre>
  <blockquote type="cite">
    <pre wrap="">Message: 1
Date: Mon, 24 May 2010 14:49:58 -0400
From: <a class="moz-txt-link-abbreviated"
href="mailto:Scott_Atwell at ferris.edu">Scott_Atwell at ferris.edu</a>
To: <a class="moz-txt-link-abbreviated"
href="mailto:smt-talk at societymusictheory.org">smt-talk at societymusictheory.org</a>
Subject: Re: [Smt-talk] MIDI Files and Copyright
Message-ID:
Â  Â  Â  Â <a class="moz-txt-link-rfc2396E"
href="mailto:OF07767F41.A6AEBCD4-ON8525772D.00615E95-8525772D.006773BE at ferris.edu"><OF07767F41.A6AEBCD4-ON8525772D.00615E95-8525772D.006773BE at ferris.edu></a>
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Dear Stefan,

Greetings. Â I would say that there is nothing special about the format.
Briefly, if the underlying work is (C) then the MIDI file is (C) as a
derived work. Â For example, the melody line to "Yesterday" is (C); if you
add the chords, then even more so. Â If it is only a short segment, then
under a 4-factor fair use analysis the use -- creating a MIDI version --
might come out okay. Â Distributing/making available just ups the ante/risk
of getting a Cease & Desist letter.

Kind regards,

Scott D. Atwell, Ph.D.
Professor - Reference Librarian and Liaison for
Â  Â  Art, Music, Philosophy, and Religion
Ferris State University Library for Information, Technology,
Â  Â  and Education (FLITE) Â  Â  Â  Â  Â  Â  Â  Tel.: (231) 591-2948
1010 Campus Drive Â  Â  Â  Â  Â  Â  Â  Â  Â  Â  Â Fax.: (231) 591-2662
Big Rapids, MI 49307-2279 Â  Â Email: <a class="moz-txt-link-abbreviated"
href="mailto:atwells at ferris.edu">atwells at ferris.edu</a>
Â  Â  URL: <a class="moz-txt-link-freetext"
href="http://library.ferris.edu/scott/ockeghem.html">http://library.ferris.edu/scott/ockeghem.html</a>

From: Â  <a class="moz-txt-link-abbreviated"
href="mailto:skostka at aol.com">skostka at aol.com</a>
To: Â  Â  <a class="moz-txt-link-abbreviated"
href="mailto:smt-talk at societymusictheory.org">smt-talk at societymusictheory.org</a>
Date: Â  05/24/2010 01:32 PM
Subject: Â  Â  Â  Â [Smt-talk] MIDI Files and Copyright
Sent by: Â  Â  Â  Â <a class="moz-txt-link-abbreviated"
href="mailto:smt-talk-bounces at societymusictheory.org">smt-talk-bounces at societymusictheory.org</a>

I have a lot of MIDI files (actually in .WAV format now) of examples from
my 20th-century book. Most of the music is under copyright. Does anyone on
this list know if it is legal for me to share these files? They are almost
all snippets -- not entire movements.

Thanks.

Stefan Kostka
Professor Emeritus
University of Texas at Austin

<a class="moz-txt-link-abbreviated"
href="mailto:skostka at aol.com">skostka at aol.com</a>
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Message: 2
Date: Mon, 24 May 2010 20:32:32 -0700 (PDT)
From: Ildar Khannanov <a class="moz-txt-link-rfc2396E"
href="mailto:solfeggio7 at yahoo.com"><solfeggio7 at yahoo.com></a>
To: <a class="moz-txt-link-abbreviated"
href="mailto:smt-talk at societymusictheory.org">smt-talk at societymusictheory.org</a>,
<a class="moz-txt-link-abbreviated"
href="mailto:skostka at aol.com">skostka at aol.com</a>
Subject: Re: [Smt-talk] MIDI Files and Copyright
Message-ID: <a class="moz-txt-link-rfc2396E"
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Dear Professor Kostka and the List,
?
I have had a conversation with the? copyrhight lawyer at the Kompositor
Editions in St. Petersburg, Russia, on the same topic. I wanted to add a
selection of musical examples to a book. The lawyer was very strict about
it and suggested that the publisher would have to sign a special contract
with the labels. I wanted to borrow from several labels, therefore,?it
proved to be impractical.?This is an interesting question, though. It
seems reasonable nowadays to add some audio files to a printed book. To
use Midi versions?cannot solve this problem: it can still constitute
copyrhight infgingement and the quality of sound does not make it worth
publishing. ?In my experience, the answer was negative.
?
?
Best,
?
Ildar Khannanov
Peabody Conservatory
Johns Hopkins University
<a class="moz-txt-link-abbreviated"
href="mailto:solfeggio7 at yahoo.com">solfeggio7 at yahoo.com</a>

--- On Mon, 5/24/10, <a class="moz-txt-link-abbreviated"
href="mailto:skostka at aol.com">skostka at aol.com</a> <a
class="moz-txt-link-rfc2396E"
href="mailto:skostka at aol.com"><skostka at aol.com></a> wrote:

From: <a class="moz-txt-link-abbreviated"
href="mailto:skostka at aol.com">skostka at aol.com</a> <a
class="moz-txt-link-rfc2396E"
href="mailto:skostka at aol.com"><skostka at aol.com></a>
Subject: [Smt-talk] MIDI Files and Copyright
To: <a class="moz-txt-link-abbreviated"
href="mailto:smt-talk at societymusictheory.org">smt-talk at societymusictheory.org</a>
Date: Monday, May 24, 2010, 9:33 AM

I have a lot of MIDI files (actually in .WAV format now) of examples from
my 20th-century book. Most of the music is under copyright. Does anyone on
this list know if it is legal for me to share these files? They are almost
all snippets -- not entire movements.

Thanks.

Stefan Kostka
Professor Emeritus
University of Texas at Austin

<a class="moz-txt-link-abbreviated"
href="mailto:skostka at aol.com">skostka at aol.com</a>

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