Today we got a very interesting inquiry and I wanted to share the story. A high school band director called Special Collections wanting a copies of an arranged score by Frank Erickson for an upcoming concert. Sounds amazing, right? I should simply walk into the storage area, pull the box, find the folder and make as many copies as the teacher needs, right? I mean, the score is classified “out of print” so it’s not a problem playing the piece in public, right?…Unfortunately, the actual answer is a resounding “no”. No, I can’t make copies for the class, no the piece cannot be played in public without permission (even at a high school band concert) and no I can’t make an exception because the material is out of print.

But, why?

Two words: Copyright Law.

And I’m not about to violate that for anyone…the penalties can range from a few thousand dollars in fines to a few years in prison (eek!).

Click HERE for a very concise break down of the penalties from Purdue University.

The Frank Erickson piece has been classified as out of print, yet that does not mean that the score is no longer subject to copyright laws. The term is merely a place holder. Meaning, the publishing house has not released new copies of the scores recently, but may decide to create more copies in the future (especially if there is demand). As of 2018, the Music Modernization Act has altered how and when music can become public domain.

To summarize, music created pre-1923 is categorized as public domain (meaning you can play it all you want, with no need to pay). Great, awesome, yay! However, you cannot copy the performance of another group without their permission.

Theoretical example: Your local classical quartet plays Bach’s The Art of Fugue at a public concert in the park. That performance is now owned by the quartet. The music may be available to all, but how it was performed/the artistic expression is the property of the group. So if you made a recording of that performance, which you attempted to sell for monetary gain, you would be in violation of copyright law.

To continue, the Music Modernization Act summary, music created after 1923 will allow for copyright to remain valid on pieces for either 95 years from release, or 120 years after the recording. Whichever comes first and has specific year ranges for different decades.

Second theoretical example: A rock ‘n’ roll vocalist, whose height of fame was 1960, records a ton of singles that were never released by their label. The artist has a resurgence in popularity in 1980, so the label decides to release the “new” music. Based upon my calculations, the date of release (1980) will expire first, making the single part of the public domain just five years before the recording date.

Now, some liberties can be taken with making copies. Usually scores can be copied solely for scholarly review. However, it’s best practices to simply look at the materials in person, rather than make yourself susceptible to a copyright violation.

How can our intrepid high school band play the arrangement without violating the law, really how can anyone?

Permission must be granted by the owner of the copyright. Sometimes, a fee is charged, or other accreditation is required. In this case, since the composer passed away in 1996, the publishing house owns all rights to the piece. The band director must contact the publisher directly for permission. I’m not sure what the publisher might require for permission to be granted, but I truly hope that it all works out!

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