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Another Practice CD Question

I've gone through all of the "Legal" forum entries and still don't have a firm grip on the legality of our procedures.  I sing with a non-profit community chorale and we comply with all copyright issues regarding our sheet music and performances.  My question involves our practice CDs.  We produce them by scanning the music into notation files (Smartscore), extracting voice parts (quite an effort with highly "optimized" scores) and producing audio discs for each part.  The CDs are discarded (ugh!) after use though the original music files are retained in the library for subsequent concerts.  There is no fee for the CDs, as the process is underwritten by a generous donor.  Are we violating some law?
 
Thanks for any input.
Tom
on February 8, 2013 12:16pm
Tom:  That's getting into the nitty gritty details of interpretation that makes it so difficult to pin down what's legal and what's not.  But my guess is that what you're doing is illegal UNLESS YOU GET PERMISSION FIRST.  (Which comes under the heading of "Things we Should Have Learned in Kindergarten"!)
 
A scan is a copy, period.  In fact a copy machine has two parts, a scanner and a printer, so to my own logic that means that the scan itself is an electronic copy and is therefore illegal.  When we send a FAX, the scanner may be in one city and the printer in another, but when we go to the copy shop they're both in the same big metal box.
 
Whether or not there's a fee for the CDs is irrelevant.  The act of making a copy (in your case a scan) is an infringement of the copyright law, and the act of making each indivdiual CD makes an additional copy which is an additional infringement.  And I suspect that distribution, regardless of whether they are destroyed, is probably an additional infringement for EACH copy made and distributed.  (And yes, infringements CAN pile up on top of each other like that.  Just check out the sad case of the Roman Catholic Archdiocese of Chicago and what infringement ended up costing THEM!!)
 
But with any luck, I'll be wrong about this, and someone will be able to point it out to us.  But please, not just because it's legal in YOUR opinion, unless you happen to be a copyright attorney, or just because you think it SHOULD be legal.  What is there in the law or the Fair Use Guidelines that makes you think it actually IS legal?
All the best,
John
on February 9, 2013 6:45am
Tom -- Interesting.  I'm no lawyer, but see it differently than John.  You are making rehearsal tapes, simlar to a director a generation ago banging out a part on a piano with a cassette recorder running nearby.  But you are using technology to get a better result -- i.e. ability to re-record, adjust balances, etc.  You are not using your scans to create new printouts for singing or avoid buying the published sheet music.  Importantly, you folks are putting in a lot of time and effort to create something new that did not previously exist -- an audio learning aid for each voice part.  Conceivably, you are adding in the dynamics, phrasing, tempos and other expression the conductor wants -- key performance aspects that go beyond what's in the printed score.  So intuitively that seems like "fair use."
 
I understand there are four key tests for fair use.  (1)  Is it commercial or non-profit/educational; you are non-profit.  (2) what's copyrighted and what are you doing; the copyright is a published score of a complete work and you are creating audio of individual parts.  (3)  how much of the copyrighted work are you using; well, you are eventually drawing on the whole work, but each product is only one voice part, so i don't see a clear indication one way or the other.  (4) what's the impact on the market for the copyrighted work; here I'd say you are on solid ground; it would be hard for the publisher to show economic damage as a result.  if anything, your efforts help publicize their product by presenting it in a favorable performance.  Now if you keep the scans, that would undermine your position.  But if they only exist temporarily enroute to creating midi files, then your legal risk is less.
 
So that's why I think your organization's approach is well-intended and defensible and unlikely to be challenged.  It helps that you respect copyright law carefully in your purchases and performances.  When one thinks of all the blatant copying of scores and recordings that goes on, it seems publishers have far greater problems than your chorus's rehearsal tracks.  But as John so clearly points out, just because it's legal in my opinion or I think it should be legal doesn't make it so!  So, if you or your board has serious qualms, seek explicit written permission.  And if the publisher wants to charge you, I'd suggest counter-offering by paying them with the rehearsal tracks, which they could make available to other purchasers as a deal sweetener.  Good luck, chris
on February 9, 2013 8:17am
Like a lot of things, it depends.
 
First, are both the music and the edition in the public domain?  If so, you have no problem. 
 
If the music is under copyright, then you need permission to record it, and you need to pay a small fee  (called a mechanical license) for each CD you duplicate.  There are services that collect and redistribute these fees, the best-known being the Harry Fox Agency.
 
in my view, making the scan is probably not your main problem with the process (it's just a means to an end), it's making and distributing recordings.  (You'd have the same issue if you never made the scan but just recorded a pianist playing the parts and then distributed the recording.)
 
But you may be going to a lot of unnecessary effort here.  Many "part recordings" are available commercially, and those distributors would have handled the licensing issues already.  Some companies will make recordings to order.  That is more costly, but part of that cost will be to make sure that everything is legal--and it may save a lot of money in the long run.  My groups have successfully used downloadchoralparts.com.
 
This is the safest, most conservative view.  The more liberal view would be that since you are using the material for educational purposes, are not reproducing a performable entity, and are not profiting from distributing from the recordings, you may be covered by fair use.
 
But remember, this only applies to copyrighted music.  If you record the vocal parts of the Beethoven Ninth from an old edition, you have no problem at all.
 
 
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