United States Copyright Law: A Guide for Music Educators – Appendix A-G

United States Copyright Law: A Guide for Music Educators

Appendix A: Essential Sections of the Law

The Fair Use; Library Reproduction; and Exemption of Certain Performances and Displays Sections of the Law

§107. Limitations on Exclusive Rights: Fair Use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantially of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

§108. Limitations on Exclusive Rights: Reproduction by Libraries and Archives

(a) Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phonorecord under the conditions specified by this section, if—

(1) The reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
(2) The collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and
(3) The reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.

(b) The rights of reproduction and distribution under this section apply to three copies or phonorecords of an unpublished work duplicated solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if—

(1) The copy or phonorecord reproduced is currently in the collections of the library or archives; and
(2) Any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives.

(c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if—

(1) The library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and (
2) Any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy. For purposes of this subsection, a format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

(d) The rights of reproduction under this section apply to a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work, if—

(1) The copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and

(2) The library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.

(e) The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if—

(1) The copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and

(2) The library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.

(f) Nothing in this section—

(1) Shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law;

(2) Excuses a person who uses such reproducing equipment or who requests a copy or phonorecord under subsection (d) from liability for copyright infringement for any such act, or for any later use of such copy or phonorecord, if it exceeds fair use as provided by section 107:

(3) Shall be construed to limit the reproduction and distribution by lending of a limited number of copies and excerpts by a library or archives of an audiovisual news program, subject to clauses (1), (2), and (3) of subsection (a); or

(4) In any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.

(g) The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee—

(1) Is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group: or

(2) Engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d): Provided, That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that t he library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.

(h)

(1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.

(2) No reproduction, distribution, display, or performance is authorized under this subsection if

• (A) the work is subject to normal commercial exploitation;
• (B) a copy or phonorecord of the work can be obtained at a reasonable price; or
• (C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.

(3) The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives.

(i) the rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to rights granted by subsections (b) and (c), or with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e).

§110. Limitations on exclusive rights: Exemption of certain performances and displays

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;

(2) performance of a non-dramatic literary or musical work or display of a work, by or in the course of a transmission, if—

• (A) the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; and
• (B) the performance or display is directly related and of material assistance to the teaching content of the transmission; and
• (C) the transmission is made primarily for—
  • (i) reception in classrooms or similar places normally devoted to instruction, or
  • (ii) reception by persons to whom the transmission is directed because their disabilities or other special circumstances prevent their attendance in classrooms or similar places normally devoted to instruction, or
  • (iii) reception by officers or employees of governmental bodies as a part of their official duties or employment;

(3) performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly;

(4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if—

• (A) there is no direct or indirect admission charge; or
• (B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions:
  • (i) the notice shall be in writing and signed by the copyright owner or such owner’s duly authorized agent; and
  • (ii) the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and
  • (iii) the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation;

Appendix B: Guidelines with Respect to Copyrighted Music Material

The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under section 107 of the 1976 Copyright Act. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines. Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the 1976 Copyright Act. There may be instances in which copying that does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.

A. Permissible uses:

1. Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.

2. For academic purposes other than performance, multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section, movement or aria but in no case more than 10% of the whole work. The number of copies shall not exceed one copy per pupil.

3. Printed copies which have been purchased may be edited OR simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist.

4. A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher.

5. A single copy of a sound recording (such as a tape, disc or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyrights of the music itself and not to any copyright that may exist in the sound recording.)

1. Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.

2. For academic purposes other than performance, multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section, movement or aria but in no case more than 10% of the whole work. The number of copies shall not exceed one copy per pupil.

3. Printed copies which have been purchased may be edited OR simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist.

4. A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher.

5. A single copy of a sound recording (such as a tape, disc or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyrights of the music itself and not to any copyright that may exist in the sound recording.)

B. Prohibitions:

1. Copying to create or replace or substitute for anthologies, compilations or collective works.

2. Copying of or from works intended to be “consumable” in the course of study or teaching such as workbooks, exercises, standard tests and answer sheets and like material.

3. Copying for the purpose of performance except as in A-1 on previous page.

4. Copying for the purpose of substituting for the purchase of music except as in A-1 and 2 above.

5. Copying without inclusion of the copyright notice which appears on the printed copy.

Appendix C: Guidelines with Respect to Copyrighted Books and Periodicals

The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of the 1976 Copyright Act. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines. Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of [the 1976 Copyright Act]. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.

Guidelines

A. Single Copying For Teachers

A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:

1. A chapter from a book;

2. An article from a periodical or newspaper;

3. A short story, short essay or short poem, whether or not from a collective work;

4. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.

B. Multiple Copies For Classroom Use

Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that:

1. The copying meets the tests of brevity and spontaneity as defined below; and,

2. Meets the cumulative effect test as defined below; and,

3. Each copy includes a notice of copyright.

Definitions

Brevity

• i. Poetry: a. A complete poem if less than 250 words and if printed on not more than two pages, or (b) from a longer poem, an excerpt of not more than 250 words.
• ii. Prose: a. Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words. (Each of the numerical limits stated in “i” and “ii” above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.)
• iii. Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.
• iv. “Special” works: Certain works in poetry, prose or in “poetic prose” which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph “ii” above notwithstanding such “special works” may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.

Spontaneity

• i. The copying is at the instance and inspiration of the individual teacher, and
• ii. The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

Cumulative Effect

• i. The copying of the material is for only one course in the school in which the copies are made.
• ii. Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.
• iii. There shall not be more than nine instances of such multiple copying for one course during one class term. (The limitations stated in “ii” and “iii” above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.)

C. Prohibitions as to A and B above

Notwithstanding any of the above, the following shall be prohibited: Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or produced and used separately.

Appendix D: Request for Permission to Arrange

Click here for a copy of this form that you can print out and use in your correspondence.

Appendix E: Inquiry Form For Out-of-Print Music

Click here for a copy of this form that you can print out and use in your correspondence.

Appendix F: Checklist to Help Institutions/Governmental Bodies Comply with the Distance Education Exemption:

• The transmission of the copyright protected material is being made at the direction of an instructor.
• The transmitting entity is either an accredited nonprofit educational institution or a governmental body.
• The copyright protected work that is being performed or displayed is directly related to the subject of the class, and the class is or will be regularly offered by the transmitting entity.
• The copyright protected work is only made available to students enrolled in the course.
• In the case of any copyright protected work (other than non-dramatic literary or musical works), only reasonable and limited portions or an amount comparable to that which is typically displayed in the course of a live classroom session is performed or displayed.
• The transmitting entity has developed and implemented a copyright policy designed to promote compliance with U.S. Copyright Law. This policy and related works have been made available to faculty, students and relevant staff members.
• The transmitting entity has applied technological measures to prevent: (i) the retention of the work by a student for longer than the class session (i.e., access is disabled at the conclusion of a single class period), and (ii) the further dissemination of the work.
• The transmitting entity has not interfered with any technological measure used by a copyright owner to prevent unauthorized retention or dissemination of a copyright protected work.
• The copy of the copyright protected work being displayed or performed was lawfully obtained.
• The work being performed or displayed was not produced or marketed primarily for distance education.

Appendix G: Contacts and Useful Information

Performing Rights Organizations

The following are addresses of the three performing rights organizations:

American Society of Composers, Authors & Publishers (ASCAP)
One Lincoln Plaza
New York, NY 10023
(212) 621-6000
www.ascap.com

Broadcast Music, Inc. (BMI)
7 World Trade Center 250 Greenwich St.
New York, NY 10007-0030
(212) 220-3000
www.bmi.com

SESAC, Inc.
152 West 57th St 57th Floor
New York, NY 10019
(212) 586-3450
www.sesac.com

Dramatic Music

The above-named performing rights organizations do not license dramatico-musical works. These rights may be licensed by the publisher, or, in some instances, by the following licensing agencies:

Tams-Witmark Music Library, Inc.
560 Lexington Avenue
New York, NY
10022 (212) 688-2525

Rodgers & Hammerstein Concert Library
229 West 28th St., 11th Floor 1633 Broadway, Suite 3801
New York, NY 10001
(212) 268-9300
www.rnh.com

Music Theatre International 421 West 54th Street
New York, NY 10019
(212) 541-4684
www.mtishows.com

Samuel French, Inc.
45 West 25th Street
New York, NY 10010
(212) 206-8990
www.samuelfrench.com

Recording Rights

The following is the address of the agency that handles recording rights for most music publishers:

The Harry Fox Agency, Inc.
601 West 26th St., Suite 500
New York, NY 10001
(212) 834-0100
www.harryfox.com

Addresses of Publishers

Sometimes, an educator who wishes to secure a license or permission to perform a dramatico-musical work, or to make an arrangement, or for some other copyright inquiry, may have difficulty in locating the copyright proprietor. The name, of course, may appear with the copyright notice on the title page or elsewhere in the publication. Sometimes, however, the publishing company has been absorbed by another; changed its name and address, or for some other reason is difficult to locate. The National Music Publishers’ Association and/or the Music Publishers’ Association of the United States will undertake to supply that information. While this may not always be possible, the information available to those organizations makes them the best source to assist all those who have difficulty in locating a music publisher.

National Music Publishers’ Association, Inc. (NMPA)
975 F Street, NW, Suite 375
Washington, D.C. 20004
(202) 393-NMPA (6672)
www.nmpa.org

Music Publishers Association of the United States (MPA)
PMB 246
243 5th Avenue, Suite 236
New York, NY 10016
admin@mpa.org
www.mpa.org

The Copyright Office

The U.S. Copyright Office is a primary source of information about copyrights generally, and the process of protecting musical works.

U.S. Copyright Office Library of Congress
101 Independence Avenue S.E.
Washington, D.C., 20559-6000
202-707-3000 or 1-877-476-0778
www.loc.gov/copyright