Submitted by Paul Jennings, Wauwatosa, Wisconsin

Idea posted August 30, 2001

Shortly after we mailed our first issue of the year, we got an e-mail message from one of our favorite teachers, Ann Hand:

"Your new issue of Music K-8 is wonderful. I have been a subscriber forever and think you just keep getting better.

Food for thought - In light of the news this week from ASCAP and the Girl Scouts regarding singing, how can a music teacher really respect the letter of the law and still teach all the wonderful songs there are to sing? Your article on singing and wanting suggestions for songs to 'add' to the list was good, but I don't know how to 'legally own' the rights to teach all the wonderful stuff around.

Could you address the issue in a future issue. ASCAP wants the Girl Scouts to pay up - summer camp is where I learned most of the songs I learned as a kid. Hummmmm - What to do. Thanks, Ann"

Since we have had several requests for information on copyrights, we thought that we'd start with this basic overview. We will also start with a disclaimer, too. We aren't copyright lawyers, though we have dealt with the ins and outs of copyrights for twenty years. Then again, even the lawyers don't always agree, so consider this a starting place.

What is a copyright?

A copyright is the legal protection of expression. The Copyright Act of 1976 (the last revision in our copyright law) states that the items of expression can include literary, dramatic, and musical works; pantomimes and choreography; pictorial, graphic and sculptural works; audio-visual works; sound recordings; and architectural works. An original expression is eligible for copyright protection as soon as it is fixed in a tangible form.

Furthermore, almost any original expression that is fixed in a tangible form is protected as soon as it is expressed. For example, a new song is protected as soon as it is written down or recorded, assuming that it does not infringe on other works.

Not everything is eligible for copyright, however. By their very nature, some items are not eligible for copyright protection: ideas, facts, titles, names, short phrases, and blank forms. While some of these may be part of a trademark, we won't discuss that right now as it really doesn't impact most educators.

In general, copyrighted works should carry the © symbol as well as the name of the owner. Some countries demand more information than this, and it varies from place to place. The U.S. has now ruled that the word "copyright" can be used in lieu of the symbol. Also, recordings should carry the T symbol.

How long does a copyright last?

How long a copyright lasts depends in large part on when the work in question was created. Depending on whether the work was created before or after January 1, 1978, could have substantial effect on the life-span of the copyright. Here are the basic distinctions:

  • Pre 1978 (Published) - The copyright expires 75 years from the date of publication (if the copyright was renewed).
  • Pre 1978 (Created, but not published) - The copyright will expire on December 31, 2002.
  • 1978 to present (copyright owned by an individual) - The copyright will last for the life of the author, plus an additional 50 years.
  • 1978 to present (copyright owned by employer of author) - The copyright will last 75 years from the date of publication, or 100 years from the date of creation, whichever occurs first.

Once a work loses its copyright, it is said to be in the Public Domain, which means that anyone may use this work freely without permission. Every year, thousands of works lose their copyrights and pass into the Public Domain. This year, for instance, works from 1921 become P. D., including such well-known tunes as "April Showers," "Second Hand Rose," "Ain't We Got Fun?" and Irving Berlin's "Say It With Music."

A Few Words Of Caution - Be careful what you use as a source for Public Domain music. For instance, when you buy a piano/vocal collection of music, the arrangements of P. D. tunes can themselves be copyrighted. Take this year's first issue of Music K-8 magazine. The folk song, "She'll Be Comin' Round The Mountain," is certainly in the Public Domain, but if you used it as the source for a new arrangement of your own, you could only use the basic melody and some of the lyrics. The introduction is unique to that arrangement, and copyrighted, as are some of the lyrics. For melodies and lyrics both, we recommend that you find at least two or more sources.

Also... Don't assume that because you think that something is an old traditional tune or one that you have heard a lot, that it is in the Public Domain. "Happy Birthday," for instance, is still under copyright. (It was adapted from an earlier tune in 1936.) Many modern "folk songs" were collected and copyrighted within the last fifty years. Still others became pop tunes in arrangements that are very different than their original form. "La Bamba," for instance, is a P. D. song, but if it is in 4/4 and has a rock beat, it is probably covered by the recent copyrighted arrangement that was so popular.

Different types of rights

The exclusive owner of a copyright has a number of special rights, and each of these rights must be handled in a different way. This is often confusing to educators as they try to decide where to go to check on a legal issue. Among the many types of rights tied to works of music are Performance Rights, Print Rights, Mechanical Rights, Grand Rights, and Synch Rights. What follows is an examination of each of these rights and how you as an educator may need to deal with them.

Performance Rights

Performance Rights cover the public performance of music. This encompasses live performances in public, as well as those on radio, television, and even in such places as elevators and retail stores. To administer these rights, most composers and publishers join an association such as ASCAP (The American Society of Composers, Authors and Publishers) and BMI.

These groups go to great lengths to extract performance fees for their members through licensing every conceivable venue for performance, and then by logging what music is played there. They cover virtually every radio station, television network, concert hall, and elevator music company (like Muzak™), as well as some less obvious places like colleges (for their "for profit" stadiums and concert halls), and campgrounds, which recently landed ASCAP in a major controversy because Girl Scouts were a part of some professional camp sites. (For more details on the outcome of this story, see the story in Quodlibet, p. 70.) License fees are decided on the basis of the number of people who are reached by a licensee. NBC may pay millions a year for all of the music they use, while a local night club may only pay a few hundred. ASCAP and BMI then set up ways to log all performances, or at least many of them, and pay some of what they collect to writers and publishers based on a rather complex formula of "points" accumulated.

How does this affect you? Not much. Schools, churches, and non-profit groups are generally exempt for the performances on their premises, and when your performances are broadcast, the station is responsible.

Print Rights

Print rights impact educators every day. Copyright owners have the choice of printing their own music and selling it, as we do, or licensing this right to a "print publisher" in any of a number of markets from piano folios to two-part octavos. Most major copyright owners license to others, either on an exclusive or a non-exclusive basis. For instance, MPL music, owned by Paul McCartney, is a major copyright owner, controlling copyrights for everything from most college fight songs to many Broadway plays to recent rock hits. They don't print as single page of music, though. Their exclusive representative for printed music is Hal Leonard, here in Milwaukee. Consequently, if you want to do a special arrangement of an MPL song, you must contact Hal Leonard to do so, as they control print rights.

Your biggest problem is photocopying, a form of printing. While Music K-8 gives you the right to photocopy music, most publishers do not. So if you photocopy music and/or lyrics of a song that is meant to be sold as an octavo, you are infringing on print rights, and quite vulnerable to prosecution. Do they go after schools and churches? Yeah, sometimes. So be sure you know whether the music you buy gives you the right to photocopy. There is no educational exception beyond the 4 measures you can use under the "Fair Use" doctrine. (We will address that more in a separate article later in the year.

Mechanical Rights

From the player piano to the compact disc, mechanical rights cover the mechanical reproduction of music. In this case, the copyright holder usually administers these rights directly, but mechanical rights are unique in that anyone is allowed to record a song once the copyright owner has done so or has allowed it to be recorded by others. You still have to pay royalties, though. The compulsory rate is currently 6.95 cents per song per recording, or 1.3 cents per minute, whichever is larger. So if you decide to do a CD with your choir, you owe at least 6.95 cents for every song for every CD you produce. You may be able to negotiate a lower fee with the copyright owner, but you have to ask.

Grand Rights

These rights won't affect most of you. Grand rights are the rights tied to theatrical productions, such as musicals. Yes, many of you do musicals, but in general, when you buy a musical designed for educational use (like our YANKEE DOODLE'S DANDY CHRISTMAS) the right to perform that work is already granted with your purchase of the work. These rights come into play if you decide to do an actual Broadway play. Here, you can't just buy the music folio; you must license each performance.

Synchronization Rights

If you want to make a video or film with a song in it, you must license "synch rights" from the owner. It may cost a Hollywood producer hundreds of thousands of dollars to use a song in a movie, but we (and most educational companies) will grant you permission to do a video of our tunes for no fee. But you do need to ask the publisher in writing.

And so comes to an end the first part of our copyright primer. In the next installment, we will get into the touchy subject of "Fair Use." If you have questions, let us know and we will try to get them into that article.