Copyright Questions Answered

[AmonaugTruehammer]

I still assert that ABC songs fall under fair use as they are transformative and a small sample of the full copyrighted work.

Assert all you want but not all .abc files are snippets of the full songs. You can very easily put the entire song in an .abc file. naturally you can't do this for every song but some songs (folk and folk-like) fit this format very well. I should know since I have put many of "The Masterharper of Pern" into .abc files, these are straight from the sheet music with nothing changed. Of course I do not post these on the forums as that would be a breach of the copyright.

[countbuggula]

Assert all you want. You are wrong. The melody is the copyright. Changing the arrangement (which is all you're doing by stripping the rest) does not change the copyright. Whether you add full orchestration to Happy Birthday, or sing it solo, it is still the melody, and still under copyright.

Why can restaurants sing the Happy Birthday tune with different lyrics then? I know several that do this (Macaroni Grill is one - they sing something in Italian to the tune of Happy Birthday).

And you're right. It doesn't change the copyright. It's still the same copyrighted tune. But now it falls under fair use, as do pre-recorded samples and thumbnail images.

[dugforum]

Why can restaurants sing the Happy Birthday tune with different lyrics then? I know several that do this (Macaroni Grill is one - they sing something in Italian to the tune of Happy Birthday).

And you're right. It doesn't change the copyright. It's still the same copyrighted tune. But now it falls under fair use, as do pre-recorded samples and thumbnail images.

To answer both paragraphs:

- Happy Birthday is an unusual case because the lyrics for Happy Birthday were written 40 years after the music. Basically Happy Birthday is actually the song "Good Morning To All", written in the 19th century, with completely different lyrics. So in this case you have the lyrics which are still under copyright but the music itself has an expired copyright. That's why you sometimes hear restaurants or others playing the song but not using the lyrics.

- abc files don't fall under "fair use". A sample is just what the word implies - a short sample, maybe 10 seconds or so. And thumbnail images might or might not be fair use depending on the context (I seem to remember search sites getting sued for using thumbnail images without permission, so where the line is drawn is probably still disputed.) Either way, though, an abc file which is the clearly recognizable melody of a copyrighted song would be called a "derivative work", and only the copyright holder is allowed to make derivative works without permission. A simple arrangement of a song is still an arrangement, not just a sampling. As an example, I couldn't distribute a Metallica song ringtone without permission, even though it's probably going to be a very simple arrangement.

[Gouru]

Why can restaurants sing the Happy Birthday tune with different lyrics then? I know several that do this (Macaroni Grill is one - they sing something in Italian to the tune of Happy Birthday).

And you're right. It doesn't change the copyright. It's still the same copyrighted tune. But now it falls under fair use, as do pre-recorded samples and thumbnail images.

No, it does not fall under fair use. That's the whole point. Paying for the mechanical license is NOT optional. Even if I give them away for free I have to buy the license. Before ever starting this project, I did a lot of research and there really is no 'gray' area no matter how hard you try to make it seem like it.

My brother is Music Minister at a fairly large local congregation. If you want more info on how these laws work, they are also a good source. They deal with these issues on a weekly basis.

[countbuggula]

- abc files don't fall under "fair use". A sample is just what the word implies - a short sample, maybe 10 seconds or so. And thumbnail images might or might not be fair use depending on the context (I seem to remember search sites getting sued for using thumbnail images without permission, so where the line is drawn is probably still disputed.) Either way, though, an abc file which is the clearly recognizable melody of a copyrighted song would be called a "derivative work", and only the copyright holder is allowed to make derivative works without permission. A simple arrangement of a song is still an arrangement, not just a sampling. As an example, I couldn't distribute a Metallica song ringtone without permission, even though it's probably going to be a very simple arrangement.

Several people tried to sue over thumbnails but have failed. The court ruled in favor of the search engines, proving that resized versions of the full image are "fair use". We're not arguing that that simple one-note melody isn't copyright. But it does fall under fair use.

[Gouru]

Several people tried to sue over thumbnails but have failed. The court ruled in favor of the search engines, proving that resized versions of the full image are "fair use". We're not arguing that that simple one-note melody isn't copyright. But it does fall under fair use.

You're wrong. Sorry, you saying so doesn't make it so. Thumbnails are not melodies. If the melody is recognizable, the copyright applies, and royalties are due. This has been proven in courts over and over. It is not fair use.

Where you might be getting confused has to do with performance copyrights, which are a much trickier beast. If an artist covers a song, then there are two copyrights in effect. The music copyright (which basically covers the melody and/or lyrics) which is held by the publisher, and the performance copyright which is held by the performing artist (simplifying out the cases where 3rd parties might actually hold the copyright.). A performer is not due royalty payments from others that use the same melody in their own arrangements. The performer cannot stop you from using the melody, but might be able to stop a performance that too closely matches theirs. If you use snippets of their performance for preview / review / educational purposes, performance royalties are not due. If you use a substantial portion of their performance in a public setting then royalties are due. What is a public setting? Basically if more than family and a few friends can hear it, it is a public performance. Music you play on your CD at a tailgate party is probably a public performance as people nearby can listen to the music. Music played in your backyard to friends is probably not.

A composer/publisher copywrites the melody, not a specific arrangement of that melody. If you use that melody, no matter how it is arranged, you owe royalties. If you create sheet music of that melody, you owe royalties, if you create a midi file of that melody (an electronic form of sheet music) you owe royalties, if you create an ABC file of that melody (another form of electronic sheet music) you owe royalties. All these royalties are due the composer/publisher, who has FULL rights to that melody.

In cases where the performer is the composer these two separate copyrights still apply. If you create your own 'cover' to that melody with your own arrangement (even a single note arrangement) you owe the the composer royalties (usually paid through the Harry Fox agency, but not always, Disney has their own agency). To use the actual performance requires that you pay performance royalties, (usually through ASCAP/BMI).

However, the composer/publisher is ALWAYS due their royalties, no matter how you arrange the song.

Does this help clear the confusion?

(Note ... I'm ignoring here the question of whether ABC/MIDI is 'sheet music' or if it is 'performance'. If it is 'performance' then you owe mechanical royalties on each copy distributed, and the composer cannot prevent you from distributing them as long as those royalties are paid. (Last time I checked, mechanical royalties were about 8.5 cents per copy, this rate is set by Congress). If it is 'sheet music' then you have to negotiate directly with the composer/publisher on the rate, as this is not covered under the mechanical royalty laws.

[Koric]

So...... not being a guru in record industry legalities, what I gather from this thread is that each and every bar band playing a cover song at this moment (10:45 PM on a Friday in the US of A) is in mortal danger of being sued into oblivion. Seems a little far-fetched. It sounds somewhat like a legal ability that is brought into play when a company (note I don't say artist here) feels that they are losing a significant income (apparently more significant than a cut of the $5.00 at the door for Harry's House of Rock's band night).

This sounds like a situation similar to my state's adultery statute. It's still on the books and is punishable by 2 years in the state penitentiary....... but it's not enforced.

[durinsbane]

Juat a question,
Or a few,
Does this debate also apply to Midi file?
If midi files fall into the copywrite laws too, why are there so many web sites that offer midi's for free download?
You can find midi's of songs from any time period, and any style. and 99% of them sound like the original song, except no lyrics on songs that would contain them.
would we not be hearing about these sites being sued for copywright infrigment if it was a great concern to the copywight holder?

All that aside, I don't think IMO, that anyone is losing, or making any money from any songs that have been played, posted, copied, or shared in game or in forums for LOTRO. If anyone is selling there services to transpose a song into ABC format, I think they would need to start looking for another job, I don't see the market in it. I also don't see Turbine making any extra money from their in game music system. Out of all the players of this game, there can't be many (-100) that bought the game soley for the in game music system. I may be worng on that, for I did read one post from someone who did buy the game for that reason, but although I don't post, I do read many of the post and have been since sept. 2005 when game was in beta.

durinsbane

[Cubrethil]

So...... not being a guru in record industry legalities, what I gather from this thread is that each and every bar band playing a cover song at this moment (10:45 PM on a Friday in the US of A) is in mortal danger of being sued into oblivion. Seems a little far-fetched. It sounds somewhat like a legal ability that is brought into play when a company (note I don't say artist here) feels that they are losing a significant income (apparently more significant than a cut of the $5.00 at the door for Harry's House of Rock's band night).

This sounds like a situation similar to my state's adultery statute. It's still on the books and is punishable by 2 years in the state penitentiary....... but it's not enforced.

The answer is yes they could be sued.
Any group that performs music written by another artist publicly, whether they are paid or not, is obligated by law to pay royalties for that performance. On top of that the owner of the bar, restaurant, club, etc. is also liable for royalties for the performance.

Agencies like ASCAP and BMI are very proactive when it comes to collecting the royalties for those that they represent. Copyright laws are not old blue laws left on the books from a by-gone era.

[Koric]

The answer is yes they could be sued.
Any group that performs music written by another artist publicly, whether they are paid or not, is obligated by law to pay royalties for that performance. On top of that the owner of the bar, restaurant, club, etc. is also liable for royalties for the performance.

Agencies like ASCAP and BMI are very proactive when it comes to collecting the royalties for those that they represent. Copyright laws are not old blue laws left on the books from a by-gone era.

So you are saying that these copyright laws are being enforced against cover bands, bars, night clubs, excetera? Not only that, but these are not "old blue laws" which means that garage bands and bars are being sued on a regular basis.

If this were actually the case, I'd imagine you would able able to cite thousands of suits (if not tens of thousands) filed from last weekend. Has anyone seen this actually happening? If so I'd love to see some documentation of this tsunami of civil litigation. It's more of a case of "it could happen, but you are far more likely to killed by meteorite in your backyard."

[Cubrethil]

So you are saying that these copyright laws are being enforced against cover bands, bars, night clubs, excetera? Not only that, but these are not "old blue laws" which means that garage bands and bars are being sued on a regular basis.

If this were actually the case, I'd imagine you would able able to cite thousands of suits (if not tens of thousands) filed from last weekend. Has anyone seen this actually happening? If so I'd love to see some documentation of this tsunami of civil litigation. It's more of a case of "it could happen, but you are far more likely to killed by meteorite in your backyard."

A quick search for you to peruse
http://www.google.com/search?q=ascap+suing

What you do not realize is that any bar that has live music is most likely already paying their part of the fees. It is owners of the clubs that ascap, bmi et al target not the players generally. The offending musicians are harder for them to track down in many cases so they do not go after them.

Lawyers for the most part are reluctant to take these cases on because the copyright agencies almost never lose and they have large legal departments to boot. The reason you never see the suits; it is easier to pay than to fight them. Or Business owners are not out to break the law and contact these agencies prior to opening.

And for the record as you can see I have never been killed by a meteorite but I have been on the recieving end of an ASCAP litigation threat. Not even for live music. I had to pay for playing CD's at my restaurant.

Garage bands do not fall into this debate as that is in the privacy of your home and would fall under fair use.

Just because someone is unaware of the copyright lawsuits and uninformed about copyright laws does not mean that the laws are not being enforced. The above search was only done with ASCAP and the word suing. I am sure much more could be found with a more consice search.

What this all boils down to for those of us on these formus is:
1) It is against the forum rules to post copyrighted materials
edit: without the permission of the copyright holder
Any other consideration is irrelevant. Turbines rules trump all else.

Editted as per Northwood's clarification below

[Northwoods]

And for the record as you can see I have never been killed by a meteorite

How do we know that? I've seen enough movies to know that it's possible the meteor's otherworldly radiation could have left you an animated corpse.

What this all boils down to for those of us on these formus is:
1) It is against the forum rules to post copyrighted materials
Any other consideration is irrelevant. Turbines rules trump all else.

Technically, it's against the forum rules to post copyrighted materials without the permission of the copyright holder. If anyone wants to get permission from your favorite bands and/or their publishers, as appropriate, to post ABCs of their music, I'm sure many of your fellow players would welcome your efforts.

[Cubrethil]

How do we know that? I've seen enough movies to know that it's possible the meteor's otherworldly radiation could have left you an animated corpse.

oh darn! My secret is out!

*begins mindless zombie shuffle*
Arrrrgggghhhhhhh Hobbitssss brainsssssss. AAARRRGGGHHHHH.

*shambles off towards Hobbiton*

[Koric]

After perusing the search I came up with this little tidbit.
----------------------------------------------------------
ASCAP says that besides broadcasting songs over the radio, television and Internet, the definition of performing copyrighted music includes playing it "any place where people gather," with the exception of small private groups
----------------------------------------------------------

So, I would need an ASCAP license to play the CD player in my car. Especially in the summer since I often have the windows down and live in an urban area where untold numbers may have subjected to my felonious disregard of ASCAP licensing. I notice that the lawsuits seem to be being filed against business owners who use music as part of their ambience, nightclubs, etc. I also noted that ASCAP sent investigators into restaurants, nightclubs and other business establishments to see what songs were being played and if the business had a license to do so.

Not once, however, did I see any evidence that Johnny the wanna-be gangsta was getting served for blasting Cop Killa out of his brain cell deadening sub-woofer as he rolls his Kia though the 'hood. Nor did I see any evidence of Suzy the junior high-schooler being served for singing along to Avril Lavigne on her iPod as she prowls the mall. Both are public performances of copyrighted material and they happen thousands of times a day.

I'm sorry your business was targeted by ASCAP, but I still don't think players in an MMORPG poorly strumming out a tune here and there are who these people are after. I mean, six-ten people in the Prancing Pony (a small private group) listening to me play Into the West doesn't really seem to be their focus.

(Note: Johnny the wanna-be gangsta and Suzy the junior high-schooler are fictional characters created for the purpose of illustrating a point in this thread. Any resemblance to persons living or dead is purely coincidental)

[Northwoods]

I mean, six-ten people in the Prancing Pony (a small private group) listening to me play Into the West doesn't really seem to be their focus.

Small private group is you playing in your basement.

Playing in an MMO where anyone with access to the game can listen in is a broadcast.

[Elfheart]

Small private group is you playing in your basement.

Playing in an MMO where anyone with access to the game can listen in is a broadcast.

So I guess I'm going to get sued if I listen to music outside in my front yard cause anyone that has access to my neighborhood can listen so it's a broadcast.

It's really the same thing. Outside of being in the Bree auction house the most people that will usually be around you at one time is 5 people. There are usually no more people in the Prancing Pony than there would be at a party in my home so I still don't see the issue.

[Koric]

So I guess I'm going to get sued if I listen to music outside in my front yard cause anyone that has access to my neighborhood can listen so it's a broadcast.

It's really the same thing. Outside of being in the Bree auction house the most people that will usually be around you at one time is 5 people. There are usually no more people in the Prancing Pony than there would be at a party in my home so I still don't see the issue.

Yeah, even the basement analogy doesn't really hold water. A band playing in the garage/basement is going to heard by neighbors, anyone on the sidewalk, etc. That's starting to sound like a broadcast under this definition......

[Northwoods]

The laws of copyright have been summarized for you. The forum posting guidelines have been pointed out.

If you want to violate either, do so quietly and at your own risk. You can't go advising people, even backhandedly, that it's OK, though: it's not.

If fact, even asking people to post copyrighted material is encouraging them to violate forum posting guidelines, which is itself a violation of the guidelines.

[AmonaugTruehammer]

There is a vast differenece between playing copyrighted music in game (no matter the size of the audience) and posting copyrighted sheet music (ie ABC) on the forums.

One COULD cause troubles the other won't.

[sactoking]

The answer is yes they could be sued.
Any group that performs music written by another artist publicly, whether they are paid or not, is obligated by law to pay royalties for that performance. On top of that the owner of the bar, restaurant, club, etc. is also liable for royalties for the performance.

Agencies like ASCAP and BMI are very proactive when it comes to collecting the royalties for those that they represent. Copyright laws are not old blue laws left on the books from a by-gone era.

Minor quibble here: In the US, an entity is not required to pay any royalties if the performance is for EDUCATIONAL purposes. This is true for both public AND private performances, but only holds up so long as the entity takes no money for the performance. Should the educational entity decide to take money for the performance, they are required to pay royalties and the copyright holders are required by law to provide permission to use the copyrighted work. The only exception to this is if the copyright holder has never released the work in media, in which case they do have the right to deny permission to the educational entity.

How many college football fans do we have? Anyone ever watched the marching band halftime shows? Recognize the songs? I guarantee you they don't pay royalties. I was the drum major for the largest 100% student-run collegiate marching band in the nation and am intimately familiar with these issues, as we released a CD and had to deal with them. One of our songs, arranged off of a recording of a live concert, was never published on an album, so we were denied copyright permission. Obviously, we didn't lay that track down. All the others were fine.

[Cubrethil]

Minor quibble here: In the US, an entity is not required to pay any royalties if the performance is for EDUCATIONAL purposes. This is true for both public AND private performances, but only holds up so long as the entity takes no money for the performance. Should the educational entity decide to take money for the performance, they are required to pay royalties and the copyright holders are required by law to provide permission to use the copyrighted work. The only exception to this is if the copyright holder has never released the work in media, in which case they do have the right to deny permission to the educational entity.

How many college football fans do we have? Anyone ever watched the marching band halftime shows? Recognize the songs? I guarantee you they don't pay royalties. I was the drum major for the largest 100% student-run collegiate marching band in the nation and am intimately familiar with these issues, as we released a CD and had to deal with them. One of our songs, arranged off of a recording of a live concert, was never published on an album, so we were denied copyright permission. Obviously, we didn't lay that track down. All the others were fine.

I did generalize a bit there. However we were not discussing educational entities here so I did not bother to address that point.

[Cubrethil]

Here is a decent article from the BBB that explains things in a fairly straight forward manner.

http://www.bbb.org/Alerts/article.asp?ID=451

[Koric]

Here is a decent article from the BBB that explains things in a fairly straight forward manner.

http://www.bbb.org/Alerts/article.asp?ID=451

An excellent article. It does, however, reinforce my assertion that these organizations are going after businesses and not private persons playing music.

[Kenderwolf]

I've actually dealt with a bunch of copyright stuff on the non-legal level where a band or artist wants to re-perform a song that was written and/or recorded previously and contacts the artist/label directly to ask for permission and terms.

The actual terms vary widely but they are all depending on only a few key factors listed here in order of importance

#1 is the song in question current and selling?

#2 is the artist current and selling?

#3 the level of the musician and type of music. pop/rap stars who have big names will command much higher royalties than rock/punk stars on the same level, and the more famous they are the more they are worth

#4 is the music part of an estate

#5 the projected level of income - if some local cover band from kansas wants to put your song on their CD it will probably cost less than if Jay-z wants to sample your music in his next song

So making a remake of the new Beyonce song would be insanely expensive if they even would let you do it. But then you would be surprised who will let you remake their music for free with only a few terms such as

-The song must be a new recording. You are forbidden to insert any part of the musician's original recording. So you can't just cut their vocals and have someone else singing over their music

-The original songwriter/artist must have credit

These were the only two things that most artists asked for and a lot of them are pleasantly surprised when we even ask. Several of them have explained that they do notice when people post their work without permission but if the previous two criteria were followed then they don't have any issue with it. Many of them actually enjoy their work being remade as it helps to keep their music current and that means more sales of their own.

Also keep in mind it is ALWAYS bad press for an artist to sue someone over copyright material even if they do have a valid argument. Hell look what happened to Metallica over napster. No artist in their right mind would bring legal action against such a small group as the LOTRO players over such a small issue as the press from it would be devastating to their image.

[Saxzon]

Just don't play any Metallica and you're good to go.