The following article is taken from the transcript of the November, 2004, seminar on Copyright Law conducted by Walter McDonough and hosted by the Longwood Opera. Some of the Questions and Answers have been reconstructed or consolidated for readability.

VI. Questions and Answers

Q: Can one print a single copy for fair usage?
A: Fair usage is difficult to define. Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances. (Author: It's perhaps best to say be careful, be judicious.)

Q: What about for educational purposes?
A: Educational purposes involve study in the classroom, not the performance in the gym. It's one thing if you're teaching. It's another thing if you're performing.

Q: What about the rehearsal for the performance?
A: Remember, we are only dealing with musical works and only involved with two rights. The first right is the right to copy. One can't make copies without permission. One has to pay for each copy although one can buy them at a discount because one is non-profit. The second right is the right to public performance. The right of public performance means that one cannot perform something that is copyright protected without the author's permission.
If you do a Beatles song, that doesn't mean that you have to track down Paul McCartney. ASCAP or BMI will provide that service. If you are in a venue that is already paying ASCAP and BMI, then you have nothing to worry about.

Q: Can one make the assumption that if you are playing in a university that they've paid their ASCAP and BMI fees? What if we are performing at a church? Is anyone paying these fees?
A: It's not the company but, rather, the venue that is responsible for the copyright. For those of you who use universities, the fees are being paid. ASCAP and BMI claim that they will give blanket wavers, particularly for churches. ASCAP and BMI are not going to sue a church or a (local) opera company. The chances of ASCAP or BMI going after a non-profit opera company playing in a room at B.U. are slim to none. One is more likely to be hit by lightning.

Q: Even independent contractors?
A: They would hit the venue not the contractors.

Q: Isn't one still obligated to make the request?
A: Absolutely. But they don't have the time or the political capital to track down people like you. What they are really concerned about are major nightclubs that don't license. Hypothetically speaking, take someone who owns a sports bar in Somerville. The place is 2,000 or 3,000 square feet and on a Friday or Saturday they could have 200 or 300 patrons. At 11 o'clock they turn on the sporting event and have a DJ and they aren't paying any fees. That's the lowest level that they would be concerned with.

Q: My frustration is that I make my request, then I never hear from them again. When I have sent the forms that they required, and they do not respond either with a quote or a bill, am I still obligated to hear from them before I plan the performance?
A: In the most literal reading of the law one has to wait for their permission to perform the work. In actuality, that's impossible. I know of absolutely NO case in the history of the United States where they have actually gone after a non-profit, co-op or small group and enforced their performance rights. The case laws involve casinos and nightclubs, venues of that nature. They’re not going to go after the little person. Also, if one is repeatedly sending materials and they are not responding, it makes them look like they are unresponsive. That is evidence of your attempt to work with them, and of their unavailability. ASCAP and BMI operate within a consent decree with the Justice Department for anti-trust purposes. This specifically obligates ASCAP and BMI to license to anyone who requests licensing. If you are contacting them and requesting licensing and if they are not responding then they are in violation of the consent decree.

Q: I am sending materials to Boosey & Hawkes and they are not responding. Then they charge us royalties for the right to perform the work.
A: They you have nothing to worry about, because what they have done is opt out of the ASCAP and BMI system. So you don't have to worry about it.
What I would do is look at the score and find out whether they are ASCAP or BMI and make my request to ASCAP or BMI. The publisher can't stop you from doing that. You are acting within the letter of the law. The fact that you are doing all of this doesn't remove you from all liability, but realistically, they are never going to sue you.

Q: Then we don't even need to contact Boosey & Hawkes?
A: I recommend that you do both. I am speaking strictly of performance rights now.

Q: We don't want Boosey to shut us off forever.
A: That's the thing. If you have a group of people who have perfect pitch, and who just listen to it once and then perform it without copies, then you could apply directly to ASCAP or BMI for licensing and Boosey & Hawkes couldn't stop you. The catch is that you need the copies.

Q: Some scores can be bought in any music store. Others are very hard to come by and one is forced to go to the publisher. They rent it out and then want it back. They charge fairly high prices compared to our budgets.
A: If you get it out of the library, and don't make any copies of it, then the only thing you have to worry about is performance rights. If 15 people get the scores out of the library and you go to ASCAP or BMI and ask for licensing, there's not a thing that the publishers can do about it.

Q: My score of 'Into The Woods' specifically says: 'The purchase of this score does not constitute permission to performance. For applications to perform this work whether legitimate, stock, amateur or foreign should be address to the licensing agent.'
A: The licensing agent could be ASCAP or BMI.

Q: Are you saying that ASCAP and BMI are not going to charge us as much as the publisher?
A: No, I'm not saying that at all. I'm just saying that they can't refuse to give a license.

Q: I pay an ASCAP or BMI licensing fee and this covers me for a number of different venues. Then I also pay separately for each rental. Do I have to pay twice?
A: Again, once is for the copies and once is for the performance royalties. They are saying that they are only providing this to you as a rental. Let's say that it is available at the library. Then you don't have to rent it from them. They are only renting it based on the scarcity of the object in question.

Q: So we still have to do what we are doing. But we don't have to be so scared. What if one makes an archived video or recording of the performance?
A: This creates a derivative work. One has created a new use for the music. That requires a synchronization license. In this case one absolutely has to get permission. The good news is that publishers will actually talk with those who apply for sync licenses.

Q: What about selling recordings?
A: The copyright law doesn't distinguish by use. For example, demos and rehearsals are O.K. but performances are not. The synchronization license is only for TV, radio and the internet.

Q: What about video?
WM: Again, that violates the right to copy. The question is whether or not they will enforce their rights. Other than performing the material in one's own home or at a social gathering, as opposed to a gathering that is open to the public, there really aren't any private rights. The right to copy is being violated.
Say I have a Bar Mitzvah and the kid likes Led Zeppelin and his brother has a band and they perform two hours of Led Zeppelin materials and they make CDs and videos of it and give them to all of the kids. Led Zeppelin's people aren't going to come after them. On the other hand, if they sell them on E-bay they'll come after them in about 15 seconds.
I don't care whether one does MoTown Songs or Opera, if one is disseminating materials then someone's rights are being violated. One has to get permission.

Q: What if I am not home and I record 'Will & Grace' to watch later. Am I violating the law by making an unauthorized copy?
A: Theoretically it is illegal, but they aren't going to stop people from making copies of 'Will & Grace' in their homes. The Supreme Court determined that VCRs didn't contribute to copyright infringement, so there suddenly became a massive boom of copies. They also can't trace the identity of those who do it. Downloading can be traced. They are looking to stop people from downloading music.

Q: A lot of us are doing new music as commissioned works. If we want to make recordings of these pieces for sale on our website, what are our obligations to execute something with the composer? Do we write a contract? Should we write up our own agreement?
A: Absolutely! The same rights are involved, but if the opportunity to avoid dealing with an intermediary arises, then you can make your own deal. The bottom line is that if there isn't a contract, the author has all of the rights. Let's say, for example, that you contract with somebody who has written an opera and you want to sell CDs and have some web performances. If nothing is in writing, at some point the author could turn around and force you to abandon all of these plans, because there has never been a transfer of the rights inherent in the underlying copyrights. All things being equal, you are probably better off, from an economic point of view, dealing with the original author who doesn't have an intermediary.

For more information, our website is http://www.futureofmusic.org My email is walter@futureofmusic.org
You can also go to http://www.jpfolks.com/home.html and email your questions - This guy is a riot. Summarize all of your complaints and send them to him. He represents people like you who do vocal music. They have some 26,000 members throughout the United States. They are predominately the folk musicians who play in coffee houses. 'This is what we do, this is what we have'

Public Domain Part One - History and practice

Web Sites for Additional Copyright information:

Future of Music: www.futureofmusic.org out of Washington University.

Copyright Clearance Center: http://www.copyright.com80/

Copyright Site: http://www.benedict.com/

Stanford University Fair Use: http://fairuse.stanford.edu/

Multi-Media Guidelines: http://www.musiclibraryassoc.org/Copyright/guidemed.htm

American Society of Composers, Authors, and Publishers http://www.ascap.com

American Performing rights organization http://www.bmi.com