[78-L] Kookaburra lawsuit

[Michael Biel]

Jeff Sultanof wrote:
> I was going to say that what Cary is describing falls under the fair use
> doctrine, but a teacher must be very careful. You cannot xerox a lead sheet
> of an entire copyrighted tune and hand it out in a classroom setting. Fair
> use would account for public performance by a school ensemble (i.e.
> classroom, spring concert, marching band for a football game).
The copying is a different issue from that of performance, and 
in-classroom instructional discussion and performance is different from 
public performance.  There also is a difference in the copying rules for 
in-classroom instruction depending on the size of the portion of the 
work, whether it is a spur-of -the-moment decision or a regular and 
repeated part of the annual curriculum, whether it is in use by other 
members of the same educational institution, and the nature of the work 
being copied. 

>  Public school
> auditoriums do not need blanket licenses, unless they give public
> performances where people buy tickets (say, if Pete Seeger gave a concert
> and sang copyrighted material, then the performance space must purchase a
> license).

You are still describing the good ole days of the 1909 law where the law 
stated "public performance for profit".  The current law eliminated the 
"for profit" aspect.  The sale of tickets is incidental.  There also is 
no longer any difference between private schools and universities and 
public schools and universities.  There no longer is any difference 
between commercial and non-commercial broadcasters (except in the size 
of the bill) -- they both need public performance licenses.

>  If a television station broadcasts a high-school football game
> with a marching band performance, it is up to the TV station to pay fees.
>
>   

The stadium needs a venue license, and if the airing of the music is 
merely incidental to NEWS coverage, the TV station might be off the hook. 

> If let's say a title for chorus is out of print, a teacher cannot simply
> copy it because he or she cannot purchase copies from a distributor. The
> teacher must contact the publisher and state that he/she wishes to either
> buy photocopies directly from the publisher, or if the teacher has a copy
> already, a document is signed by the publisher allowing said teacher to make
> an agreed-upon amount of copies. Not being able to find the publisher is no
> excuse. Not only did I teach this subject to university students, now many
> teacher organizations are giving lectures and presentations to teachers
> themselves to explain what the law allows.
>
> Fair use is a very tricky subject which is specific and yet very general.
> Photocopying of music is a big no-no; schools have been sued when a
> representative of ASCAP or BMI attends a performance and sees xerox copies
> of copyrighted material on stands and in students' hands.
>
>   

Baloney.  ASCAP  and BMI only license public performance rights, and 
have nothing to do with publishing rights.  ASCAP and BMI do not care if 
the song is performed live or recorded, or from a published or 
photocopied copy, they only care if the song is performed no matter what 
the source.  It would have to be a representative of the publisher who 
was seeing the photocopies in the kids hands.  While it is quite true 
that photocopying is a big no-no, ASCAP or BMI wouldn't care because 
it's not their job.   If ASCAP hears an ASCAP song and knows there is no 
venue license, then they sue.  Period.  Same with BMI.  Besides, they 
would have no way of knowing if the publisher had allowed the 
photocopying or even if the publisher had SUPPLIED photocopies of 
out-of-print works.

> Of course I cannot speak for fair use issues outside of this country. I'm
> not a lawyer.
>
> Jeff Sultanof
>
>   

Neither am I, but I know the difference between a publisher and a 
performance rights representative. 

Mike Biel  mbiel at mbiel.com 

>> Cary talks about classroom use of songs, but you have to remember that
>> public performance royalties are venue-based.  I am not sure about
>> public schools, but I would think that there might be a system-wide
>> blanket license that would cover all uses at any school in the system
>> including the marching band at football games, and songs at dances,
>> talent shows, school concerts, both students and outside acts.  This
>> would include classrooms.  I know at the university there are site
>> licenses that include all this and the radio station as well.   There is
>> some fair use for instructional and discussion purposes, but remember
>> that there are things which are published specifically for instructional
>> purposes.  They have to have the ability to get paid for this use.  It
>> is not all free, but is usually expected by the teacher to have been
>> taken care of by the venue -- the school administration.
>>
>> Mike Biel  mbiel at mbiel.com
>>