A long-standing request that our readers and listeners have made is to have access to transcripts of our most popular podcast episodes.
One of the most popular and informative conversations we’ve had was with Jim Kendrick, a foremost industry expert on the subject of rights and music. As an attorney and music publisher representing major composers and institutions, Jim has decades of experience navigating the often-complex world of intellectual property on behalf of his clients, and he deftly steers us through the intersection of creativity, copyright, and technology.
This episode first aired on February 19, 2022. First we learn about Jim’s journey from oboist, to music publisher, to attorney. Jim then outlines the history of copyright and tells us both when copyright takes effect and what the six exclusive rights in works that copyright owners have.
We then discuss the practical effect of those rights and how they can be protected and licensed, as well as the technological changes in the industry over time in terms of producing and distributing music.
Music notation software plays an important role in the creation of musical work and we explore what rights engravers and editors might have, or not, in the process of producing a piece of music, and the concept of work-made-for-hire.
Finally, we look at ways in which the field is adapting to the reality of licensing music in the digital era, and what is — and isn’t — fair use, and the four factors that determine when it may be legally permissible to copy music.
Below, enjoy a live transcript where you can listen and follow along (just press the play icon), or below that, a more static readable format.
Disclaimer: Our hosts and guest are not speaking on behalf of any clients or organizations with which they may be affiliated, and the content of this program is not legal advice. If you have a need for legal advice, please contact a qualified practitioner.
The rights stuff, with Jim Kendrick
Philip: Welcome back, everybody, to another Scoring Notes podcast, where we talk all about music notation software and related technology. I’m Philip Rothman, and once again, I’m back with my cohost David MacDonald. David, how’s it going?
David: It’s going great. How are you doing, Philip?
Philip: I’m doing well, thank you. David, I know you are a big proponent of knowing how to write music.
David: I would say so. I would say I spend a lot of time thinking about that as a music composition professor.
Philip: Well, no doubt. However, what about rights and music?
David: Oh, I see what you did there. That was a good pun. Well done, Philip.
Philip: That was one that I actually prepared in advance, unlike some of the other terrible ones. They’re all terrible on this program, unfortunately, if you listen on a regular basis. But the topic is not terrible, the topic is something that is really important.
If you listen to this podcast with any regularity, you know that rights and music is really a big part of the industry, and it’s something that sometimes we don’t always talk about or talk about enough. But today we have one of the very best in the industry, and in the world of music composition and music publishing in general.
Jim Kendrick is with us, folks. We will give Jim’s bio in just a moment, but first of all, Jim, thank you so much for coming on to Scoring Notes and spending a little time with us.
Jim Kendrick is a partner at Alter, Kendrick and Barron. He’s an attorney that specializes in intellectual copyright matters, and in addition to practicing law, he’s also served as the senior executive of several music publishing companies, including Boosey and Hawkes, Schott Music, European American Music, and Universal Music Publishing.
He’s a director of ASCAP, the performing rights society. He’s also the secretary and executive vice president of the Aaron Copland Fund for Music, as well as serving in a similar capacity with the Amphion Foundation and a number of other foundations.
He’s a director of several other organizations and does a whole lot of other work in the industry on behalf of composers, publishers, and all the rest of it.
We will get right down to business, talking to Jim right after the break.
Getting started in the business and smoothing out the cash flow
So, we’re back with Jim Kendrick. So Jim, after that quite extensive list of titles in your bio, how did you get into this business in the first place?
Jim: Well, I started as an oboe player, but I wasn’t any good at making reeds.
Philip: If only it were that simple.
Jim: Yeah. As I came out of music school, I was freelancing in New York and I got involved in music publishing to smooth out the cash flow.
And I went to work for European American Music in 1977, which was run by a wonderful man called Ronald Freed, who said, well, you know, it’s one thing to smooth out the cash flow, but if you go to law school, you’d might actually have one.
So he helped me in every possible way to start going to law school while I was still working at the company.
Philip: Yeah.
Jim: I was at European American Music and went to law school at night while I was working there.
David: What were you doing at European American Music at that time before law school?
Jim: Originally I was hired to be the sheet music sales manager. But the problem was is that they had done a very hasty aggregation of stocks of different publishers from different places.
And I went out to the warehouse when I started and realized that I could take all the orders I want, but they couldn’t fill them.
So I eventually became the operations manager and set up their warehouse and distribution system. And that was much of what I was doing.
And then, this is a true story, I was asked to look at some old contracts by the lawyer who had been the company lawyer for a long time.
And he said, well, gee, you read those, and you didn’t go to sleep. You ought to go to law school. That was kind of where it went from there.
Philip: What was it about reading those contracts, and generally the marriage of the music publishing field and that interest in law, that both you maybe identified in yourself and also people had identified for you that made it an attractive path for you and something that you decided that was important to pursue?
Jim: I really knew very little about rights when I started in the music publishing business. As I said, I was out selling sheet music, and that was pretty obvious it was physical products and you sold them and somebody else resold them to the eventual consumer, which I had also been one since my earliest days.
And by reading these contracts and seeing what rights the composer was giving to the publishing company and what they were expected to do with them, the light bulb went off of, oh, wait a minute, this is how this all happens.
And then I learned about all the rights that don’t specifically have to do with the sale of sheet music, but which are also very important rights involving media uses recordings, film and TV uses, so-called grand right uses, dramatic uses. It opened up a whole new world of interest for me.
Philip: Let’s talk about that light bulb, because I think a lot of people, maybe they’re fortunate enough to actually have that light bulb moment and maybe some aren’t. You know, David, I know you and I, as composers coming up through school, you know, we’re so focused on studying the theory, studying the history, studying the repertoire, learning the technique, learning the skills.
And the topic of our rights in all this and the topic of the fact that this is actually what we create is property.
I was actually fortunate enough to actually take a music business in law class as an undergraduate. And that was when the light bulb went off for me for the first time. How about you?
David: For me, I, it was all things that I’ve picked up. Because I’m a nerd and I read a lot of things, but it’s just things that I read on my own. I don’t think was ever a part of any curriculum. And I think that’s how it is for a lot of composers.
Philip: I think it is for a lot of composers. And not just composers, but people who are performers, people who are basically doing anything in the field of music.
1976, an important date in US copyright law
Jim, talking about that light bulb moment and talking about taking it to the next step in terms of understanding these rights. You said you were selling sheet music. We’re thinking about physical property. Like, I can hold this thing in my hand, right? So I own it, but do I really own it? Do I not? What, what part of it do I own?
And can you start talking about that time when you started learning about it, but also enlighten our listeners about those different types of rights inherent in music in the process.
Jim: Okay. We’re talking about the mid 1970s to the late 1970s. I got my master’s as a performer in June of 1976.
And I got involved with publishing, you know, right around the same time.
Philip: Important date in copyright law, by the way, 1976.
Jim: Oh, yes. Oh, yes. Yeah. So I’ve been working in this area the entire lifetime of the 1976 Copyright Act, although I still spend an awful lot of time trying to make things work under the 1909 Copyright Act because that didn’t go away entirely.
So, the point was that you had a mechanism by which creative work — compositions, but also all sorts of other kinds of creative work were protected by the government. And the people who created them were given the right to decide what should happen with them, and, if they wished, to get paid for what happened with them.
And that’s the whole basis of the music publishing business, it’s the whole basis of the film business, it’s the whole basis of the recording business. All of it is about creative genius. And I’ve done lots and lots of things in the music business, but I’ve never been able to sit down and write a piece of music that anybody would ever want to hear again, including myself.
So, that’s a whole special category of people, like you guys that I loved because I loved music, and I knew a lot of composers and really enjoyed working with them, and saw the value of what they were doing. But this is actually how the value was able to be realized. And, in a certain way, how the respect for the work can be demonstrated by people complying with the law.
You know, everybody in the entire ecosystem, from the creators to the intermediaries, like publishers to the users, they have to live in an atmosphere of mutual respect the way I wish the whole world [would].
Philip: Yeah.
The sciences and useful arts
Correct me if I’m wrong, but my understanding, at least here in the United States — and I know Jim, you have a lot of experience, not only here in the US but internationally — in the United States. I mean, this really flows from the US Constitution where it says the promotion of the sciences and useful arts, I think, if I’m remembering the phrase. And I suppose music is a useful art, certainly. And then it’s then up to the Congress to define how those rights are parsed out and the technical bits. But this is something that goes way, way back a long time.
Jim: Well, the clause to which you’re referring is Article 1, Section 8, Clause 8 of the Constitution.
Philip: Did not have that one in front of me. And neither does Jim. He’s recalling it from memory.
Jim: That’s true.
You’re right. It’s a declaration within the Constitution that the Congress has the power to promote the progress of science and the useful arts, exactly what you said.
And it goes on to say that they are, securing for limited times — they don’t say for how long; that’s for the Congress to decide, but it’s not forever — to authors and inventors the exclusive right to their respective writings and discoveries.
So that’s the constitutional command. You correctly stated that the Congress then a year later enacted the first copyright law and the most recent copyright law as we’ve already mentioned is the one that was passed in 1976, came into effect in 1978. But all of them stem from that constitutional provision.
Philip: And is it fair to say that things like patents and trademarks are cousins of copyright? Do they all flow, basically, from that same master branch?
Jim: Yes. In the case of patents, absolutely. The case of trademarks, trademarks come more from the, unfair competition branch of law. A lot of it is common law.There’s both common law and statutory trademark protection. It’s more complicated, but they are not protected as works of intellectual property, so much as they are protected as indicia of brands and identification of goods. So that’s the difference.
Philip: Okay. Fair enough. All right, so let’s say this: David writes a piece of music, or I write a piece of music.
Jim: As long as you saying it’s not me, so it’s…
David: Hypothetically, if…
Philip: Yeah. David writes an oboe concerto for you to play, or actually, Jim, by the way, Jim is now really, you know, shredding on the bass more these days, the electric bass.
Jim: That’s true.
Philip: And keys. Yeah, I have seen, and I have seen him in action, folks. So check out the cover band, if, you know, you’re in certain hotspot vacation spots around the globe that you might be hearing his work coming to a stage near you.
Jim: And if you’re really unlucky, the setlist has, one that I sing, that undoes the whole thing.
Philip: Oh, good.
Well, we won’t ask you to sing, but maybe you’ll prevent some people from singing for their supper here. And instead, maybe get something a little bit out of their rights.
When does copyright exist, and the six exclusive rights
So say David or I write a piece of music. What are the different rights that are inherent in that composition? And when do they materialize? When does a copyright take effect?
Jim: Okay. Copyright takes effect upon the fixation of a work in a tangible medium of expression. That means if you write it down, if you input it into a memory device, like a hard drive of a computer, if you record it on some medium, any medium for which a work can be recalled for later use. If you simply improvise something in the air that doesn’t have a copyright, but if you have a recording machine running, it does.
Philip: Okay. And we talk a lot about music notation on this program, but it does not have to be notated music. It can be like you said, in a tape recorder.
Jim: Yeah, sure. It could be a recording of the sounds.
Okay. At that point, the copyright exists. You don’t have to register it, although there are good reasons sometimes to do so. You don’t have to do anything else. But the more evidence you have that you created something on such and such a date, the better. So, date your work is basically what I’m saying.
At that moment, you get six exclusive rights. And those are:
Number one is the right to reproduce the work in copies or sound recordings. That’s the copyright.
Number two is the right to prepare derivative works, which I’m sure we’re going to talk about, but that includes any kind of arrangements. A sound recording of a musical composition is a derivative work of that composition. So it requires rights in the musical composition as well as having its own copyright as a sound recording.
Number three is the right to distribute those copies or sound recordings by any means, including sale, rental, lease, or loan.
Four — and this is probably the most economically significant for music — is the right to perform the copyrighted work publicly. That means either in a live performance with the audience present, or over any form of broadcast medium. And those rights in the music field, for non-dramatic performances, are licensed through the performing rights societies, ASCAP BMI, SESAC, GMR, there may be some others.
Philip: PRS in the UK.
Jim: GAMMA [in] Germany, SACEM in France, et cetera.
Number five — which was not considered important at all in 1978 when the current copyright law came into effect, but which is extremely important now, as you’ll see — it’s the right to display the work publicly. At one point, you know, when this first came in, we were looking at a piece of modernmusic, beautifullyhandwritten by a really excellent composer. And we thought, you know, that’s so beautiful, we could take a page of that and frame it and put it in an art gallery. Maybe that’s where this right would come into effect, but what else could possibly cause music to be displayed publicly? Well, here we are. So any form of internet display is covered by that.
And then, [number six], for sound recordings only, the right to perform the work publicly by means of a digital transmission. Now, you’ll notice that I made the distinction right from the beginning between copies and sound recordings, which are called, somewhat archaically in the copyright law, phonorecords as they then were.
The reason for that is that a business practice developed when radio came in in the 1920s and thirties where the performing rights societies, which already existed — ASCAP specifically — went to the radio station and says, hey, you’re performing this music publicly.
And after a bunch of court cases, which is the way we settle everything in America, that principle was upheld. And radio stations have to have licenses from the performing rights societies which cover the musical compositions.
But what about the sound recordings? Well, the sound recordings were not considered copyrightable subject matter under the prior copyright law due to a decision from the Supreme Court, which involved not sound recordings, but piano rolls, of all things! And I always have this picture of the judges in the robing room unrolling the piano roll and looking as [someone] said, “I can’t tell what the music is, can you?” And they probably took the same thing with the shellac disc looked at that, and, “I have no idea…”
So they decided it wasn’t copyrightable subject matter under the 1909 Copyright Act. As a result, the radio station says, “well, we don’t have to pay the owners of the sound recording or the performers anything.” And that is indeed how things are today for analog broadcast.
However, in the nineties, when digital transmission of sound recordings — somehow, unusually, Congress actually realized that maybe 20 years later this would actually be a thing that would actually be really important, that would actually replace the sales of sound recordings in physical form. And they put in this extra right of the right to perform a work publicly by means of a digital transmission.
So when Spotify — assuming the artist allows their music to be on Spotify — plays a sound recording of a musical composition, they are paying both the musical composition owner via ASCAP BMI, SESAC, GMR, whatever. And they’re paying the owner of the sound recording copyright and the artist via Sound Exchange or possibly by a direct deal. But they have to make a deal with somebody to do that. That’s the big difference. And that’s why that one right is in there, being very specifically limited to digital transmission.
Philip: Ah, okay. So we have these six rights. And you said it very quickly there, but I just wanted to make sure that our listeners understand. As soon as that work is, like you said, Jim, fixed in tangible form. I think I might be missing a word or two there.
What was the exact phrase that you used?
Okay. Tangible medium of expression. Then, you as the creator of that work, are the owner of all of those rights.
But then the question is, what do you do with that afterwards? And how do you protect those rights? And that’s a whole other kettle of fish.
Jim: Yeah. If you are going to give anybody copies, whether it’s physical copies or digital copies in graphic form or sound recording form, put a copyright notice on it. And a copyright notice is very simple. It’s either the word “Copyright” or the abbreviation C-O-P-R, period, or the little “C” in a circle, which is what most people use.
You put the year of creation, and your name or your DBA name, or, you know, some name that other people can identify you by. And just put that on the first page of the music — put it on every page, put it as a footer, whatever. But that means that no one can say — who is copying or otherwise using the music that’s on that sheet — “I didn’t know it was copyrighted. I didn’t know somebody owned it.” So that destroys the so-called “innocent infringer” defense.
The other thing you can do, if you’re going to be putting the work out on the market, you would not be ill-advised to register the copyright. You can do that online. Registering the copyright is not like registering a patent. There’s no examination as to how original it is, no contested proceeding.
You basically go online to the Copyright Office — copyright.gov — get the form you need for the type of work that you want to register. Fill it out. Basically, they ask you like, who are you? What did you write?Does it include anything that is owned by anybody else? Sign here, send us some money and send us a copy of the work. And it’s pretty straightforward.
Protecting copyright in the digital era
Philip: You know, one of the things that we wanted to ask you was the changes that you’ve seen over time in both the copyright law and also the practical application of it. And you mentioned that last of the six rights, the right to perform the public digital transmission of the work.
Speaking of the digital era, obviously we’re talking now several decades that digital transmission has been around, both with audio and also just digital transmission of files. The ways in which people can copy music — it’s not like people never were able to copy music illegally; that has always been the case in some form or another — it’s just that now, in the digital world, it’s so much more readily available to us. The tools that we can scan something [with], or we can capture it with our phone, or we can send it around the globe and send a zillion copies to anyone everyone.
I think a lot of composers and a lot of musicians generally struggle with, Jim, and probably you see it as well from both your work advising your clients, and also in the publishing industry, is like, how do we make the music accessible? And I’m not talking about the musical content, of course. The genre, that’s a whole other discussion. But the actual — how do we actually make sure that people who we want to have it are able to acquire it and use it and perform it and all these things, and yet, make sure that the copyright provisions are being adhered to?
I think that is always — there’s always that tension there between wanting to just send somebody your [music]. I mean, we we’ve all done it. We’ve all said, Hey, here’s the music. Sending you, whether it’s, legitimately or otherwise. That is always, I feel like, something that people — sometimes they want to do the right thing and they don’t know what the right thing is. You know, that tension between the ease of distribution in the digital era and the nature of copyright law. What are some practical things that you have seen that work effectively?
Jim: Oh, if you want to put that qualifier on it, none. [Laughter] And edit that out please.
Philip: I think I’ll leave it in, just because it does speak to the issue.
Jim: That’s okay. All right. I’ll give you a serious incidence, almost like that.
Philip: Sure.
Jim: Okay. What you’ve just described is the defining question of all of the content industries for the last 30 years, at least. The ability to copy and distribute materials has become, so much easier than it ever was, because of the internet. And the ability to keep control of materials in a way that still allows them to be disseminated to people that you want to potentially use them, or actually use them, have not been able to keep pace.
Philip: In other words, we’re talking whack-a-mole here.
Jim: Yeah, that’s exactly what it was. And I’ve been playing that game on behalf of clients for 30 years.
Some things have gotten better. The DMCA — Digital Millennium Copyright Act — did put in a mechanism called “Notice and Takedown”, where if a copyright owner finds their materials on somebody’s website without their permission, there is a procedure that’s set out in the Copyright Act for giving notice to the website of that. And the website is obligated to take it down unless they have a good argument that the copyright owner is not correct. That’s helpful, but it’s whack-a-mole. Because something goes up, goes down, it’s up from somebody else, goes down, but it’s a constant battle. Those publishers and composers that want to make digital materials available, there are a couple of platforms,particularly nkoda, that has encryption. That’s supposed to be quite effective. I have not heard of any problems with that particular platform.
Philip: David did an extensive review on nkoda actually, when it first came out. And we’ve been keeping up with it.
Jim: Yeah. Professional publishers use that as a way for people to do perusals of their materials.
Philip: The thumbnail sketch of what nkoda is: it’s basically like a streaming service for musical scores. You pay a subscription, and you get unlimited content to whatever is on the platform. And publishers and self -published composers are able to put their music up there
David: And viewable only within that application. So it’s not that you can download some unencumbered PDF file or something like that. It’s only viewable within their app. So it is both, as Philip was saying, a service and a score-reading application.
Jim: Right. And my understanding is they are not using regular PDFs. They convert the materials into a proprietary format. So far, so good, with that one.
There are other content owners who put materials up with watermarks on their PDFs, on the theory that it may not stop them from being sent around. But if they walk into a rehearsal and somebody is playing with somebody else’s watermark on their PDFs, that at least they know what happened, which is something, I suppose.
But look, when I was playing, I would sometimes do church gigs. I had walked through the choir room and I wouldn’t look left or right because I’d see piles of, you know, my company’s publications photocopied and put into stuff, you know?
Philip: The Xerox machine has been around a lot longer than the internet.
Jim: Yeah!
Philip: It has always been possible to make those copies. Yeah.
Jim: When I was a student in the, late sixties, early seventies, they still had this silvery paper, you know, copiers. Go into the public library and, you know, you can bring sheet music, you borrowed from your friend and do whatever you wanted to do. There was a big sign saying, you know, no illegal copying, all this kind of stuff. But nobody was watching. You know, again, I don’t want this to be personalized, but, it’s been a problem forever.
Philip: Sure.
Jim: I actually knew of a situation where somebody got a rental score of a piece and copied out all the parts for a concerto with strings. I guess the orchestra wouldn’t pay the rentals or something like that. He was damned if he wasn’t going to play that piece. So, you know, people go to real extremes, but now it’s easy.
The balance between protection and access
David: And I think Philip is getting at an important balance that we’re all trying to strike, is that we want people to use this music, and we want them to use it in the way that is best for them. If I’m composing a piece, and I’m selling someone a digital version of it, I don’t want to be the person that says you must use this application and only this application to use it.
Like, if they need to print it for whatever they need to do, then I want them to print it so they can use it and hear it and perform it. And if they want to bring it into one score-reading application on an iPad and in a different score-reading application for somebody else in the group that has Windows tablet, or an Android tablet, or whatever, I want them to be able to do that because I want them to use it.
But it’s the same thing you’re saying, Jim. The more flexibility I give them to actually do what they want — what I want them to do and what they presumably paid me to let them do — the less control I have over what happens after that, in both good ways and bad ways.
Jim: Well, first of all, as a self-published composer, you can make whatever decisions you want and they don’t have to be consistent. You can let one person do something that you wouldn’t let another person do. So, you know, you have total flexibility in terms of what you want to do. In terms of deciding what you want to do, if you have a relationship with the performers that you say, Hey guys, I’m going to make it available in this way, but please don’t make it available in this way to anybody else. And you think they’re going to respect that, then, great.
Do I think that most people are honest? Yes, I actually do. If you ask them, “Please don’t do that. You know, I’ve got to give you something, but please don’t do anything else with it. ’Cause you’re taking money out of my pocket. You’re making it hard for me to continue with my career as a composer because I have to make a living and you’re not letting me do it.” That, I think, is sometimes an effective discussion as well. There are always people who don’t care, but…
Philip: Sure.
David: And I think that’s a different conversation when I am a self-published composer — somebody buys the thing from me and they have this direct relationship with me, the person that put it together — then when it is, Faceless, you know, Large Publisher. It doesn’t feel like it is impacting individuals, though it does, when you’re dealing with a big publisher that you can order stuff from, or walk into a store and buy stuff from at your local music shop, if those are still around.
Philip: Yeah.
The “first sale” doctrine
Jim: Let me say one thing, if I may, about that. There is something in the copyright law called the “first sale” doctrine. And that means, if you buy — whether directly from the composer, or from a music store or directly from a publisher — a physical copy — we’re talking physical copies here — and you decide that you want to rent that copy to the band down the street, you can do that. But only that copy. You can’t make any other copies. And that’s why, in the digital world, that doesn’t work at all. Because obviously you are making copies just by sending it to somebody else. Even if you delete it yourself, you’re making copies in the process.
So, that is something that people sometimes rely on to let people use things they’ve already bought, but that’s okay. That is allowed.
Philip: And, to be specific here, it has to be a sale. It’s not like if — we’ve talked actually on this program quite a while ago now about the concept of renting music versus selling music, and why orchestras sometimes rent music and so on. Like, if you’re renting music, you’re renting it for a specific purpose or purposes that is strictly defined by the licensor — or, you know, in most cases, the publisher — who is granting you those licenses. You can’t, then, rent that music to somebody else. You can’t sublease the music, essentially.
But what you’re talking about is, if you buy it. We’re talking about, again, purchasing a copy of music that is intended for sale. You can then, essentially, either loan, or let somebody borrow that copy as long as you’re not making a copy of it.
Jim: You can’t increase the number of copies by doing [that].
Music notation and engraving
Philip: Right. Yeah. So that’s an important distinction for anyone curious. And, let’s tie this now to the software companies and the software products that we use to create our music notation. You know, we’ve been talking a lot about printed copies, or PDFs, which is more or less a digital representation, more or less a fixed static format. “Portable Document Format” is literally what it stands for.
Then, we’re talking about things like Sibelius files, Dorico files, Finale files, MIDI files, Logic files, Cubase, and all the rest of it. How does that play into it, Jim? And when somebody then says, let’s just take, for instance, you know, somebody does a project and they give somebody the PDFs to it. Are they entitled also to the music notation files? What can they do with that? How is that all governed? And I know the answer.
Jim: That’s governed by contract.
Philip: Yeah, but that is something that I think a lot of people get tripped up over.
Jim: Well, let’s start with one important concept, which is that under the US copyright law — not necessarily in every country, but under the US copyright law — there’s no copyright in typography.
Philip: A lot of our listeners will be upset to hear that, because we talk a lot about typ ography and fonts on this program.
Jim: Yeah. So, there is work product, certainly, that is created using these applications, and the conditions under which the work product is created are negotiable. That’s something that the engraver can negotiate with the composer or publisher, whoever it is who’s giving them the assignment. We then get into another concept,called work-made-for-hire. Work-made-for-hire is the one exception to the rule that the copyright in new work automatically vests in the human creator. Again, fairly unique. I don’t know of another country in the world that has this concept. If you are hired, by a copyright owner to engrave a work that they have created, it is possible — it’s not inevitable, but it’s possible — that they may create a work-for-hire agreement with you that vests all the intellectual property rights in what you create, as well as whatever else, physical copy or digital copy, in them. And when they do that, obviously that’s in return for paying you whatever fee you are able to negotiate. Just something to think about.
I don’t know how it works with you, Philip, but if a publisher wants you to work on a particular project, do you often get a written agreement with them?
Philip: Not always.Sometimes it’s more or less a series of communications, verbal or email. And often, the email chain back and forth will more or less serve as the written record of agreement. Sometimes there is a contract.
But even when there are contracts… Look, a contract, in some ways, Jim, is the record of everything that’s gone wrong before.
So, you know, it’s… it’s hindsight [that] is always much clearer than foresight. But basically, yes, when there is a contract, it is always better to have one, and for all parties involved to understand, what is the project here? When somebody hires, let’s say, one of our listeners — we have a lot of listeners who do this work professionally or semi-professionally, I’m talking about music preparation — somebody says to them, I’d like you to take my score and make the parts out of it, or edit the score and do whatever it is that needs to be done.
Now, there are a few ways it could go. The person has it in manuscript form and they just want PDFs as a deliverable. And they don’t really care how the music has been created. Then it might be very clear that the deliverable is the PDF or a master and it is in basically readable form. Like, technically if you get a notation file, a digital file, and you open it up in a text editor, you’re just going to get a bunch of digital gobbledygook. You need to actually have that software to read it. That’s another issue that comes into play.
But then sometimes it is clear and, you know, increasingly more so, that it is valuable to have those source files. But then the question arises. Okay, well, I, or, you know, whoever is doing the work, has spent a lot of time kind of fine-tuning those settings, going through every last nook and cranny of the pages and pages of layout options and engraving options and notation options. You know, fine-tuning an eighth of a space here, a 16th of a space here, a millimeter here, and so on. The thickness of a slur and all the other things that, you know, you spend a lot of time as an engraver poring over those details.
And then, when you send that file to somebody, your client basically has access to all of those settings. Now, will they know what to do with them? You know, maybe, maybe not. But how is that accounted for in the whole concept of work-for-hire and copyright?
Jim: Well, so far, what you’ve described to me doesn’t sound like copyrightable subject matter. It sounds like services, and you know, obviously very valuable services in the context of a composer or publisher needing to have materials made available or cleaned up.
Now, let me make one possible exception to what I just said. Editing can be copyrightable subject matter, just as arranging is.
Philip: Even here in the United States.
Jim: Yeah. Well, it’s like critical editions. Critical editions, in some countries, have a whole separate copyright because the government of that country wants to encourage that kind of scholarship. It’s a special protection that’s different from a brand new work, or, you know, a recent work. But there is set protection.
In the United States, we don’t do that. We say that whatever’s new can be protected. So, if all you’re doing is — with the, you know, most avid scholarship ever — is digging out all of the things that were added to the original manuscript, so that nothing’s left with the original manuscript, in theory — and I say this, this is only in theory — in theory, there wouldn’t be anything to copyright, because it’s the old Bellini or whatever it is.
Of course that’s not true, in practice; there’s always something. So to the extent that you’ve made editorial choices and either clarified — you know, that’d be obviously if there were any changes to the notes or dynamics or anything like that, that can be protectable. Beyond that: less clear.
A quantum of expression
David: I was going to ask if you could talk a little bit more about that line between the things that are copyrightable and not copyrightable. You said typography isn’t, but editions and anything from whether you clarify a dynamic, or change just the casting off where the page or line breaks are. Where does something go from not being copyrightable to being copyrightable for these specific kinds of — I guess we’re mostly talking about derivative works here. Where’s that line?
Jim: Well, who knows. The…
David: Well, I feel much better about that now.
Jim: Because…
Philip: Jim, if, you don’t know, no one does! So…
Jim: If you’re talking about ministerial things like page turns and things like that, I would not think that would have copyright protection.
Philip: That’s my new title: Minister of Page Turns.
Jim: Sometimes I wanted one to pray for me, but never mind. This is… this is a very ill-defined area, except to say you need a quantum — whatever that is — of copyrightable expression to have copyright protection. Copyrightable expression, as I said, for sure would be changing the notes, unless you’re just going back to something that’s obvious from the original manuscript.
If you’re realizing a figured bass, that certainly is protectable. That’s the Hyperion case from the UK. But it has to be original. That’s the point. It can’t just be something that is either going back to somebody else’s earlier work, or so minor and so obvious that it doesn’t constitute creative expression.
David: And can it be, like, front matter that tags along? Like a preface to a critical edition?
Jim: Oh gosh. Yes, absolutely. Yeah, the front matter, for sure.
David: Okay.
Philip: No question. Jim, I’d like to get back to the music notation software for a moment because, you know, you said, again, these things are governed by contract. We understand this is a podcast and not an official legal consultation. So, but that being said, can it work both ways?
If I am hired to do an engraving of a composition and somebody sent it to me and it really looks terrible. You know, I’m not changing a single note. Like, my role is strictly ministerial, if you want to put it really precisely. However it is really making it performable, and clear, and all that. And part of that is, like I said a moment ago, talking about the thickness of the barline and the staff line and the slur arc and all those things.
Would it be possible, if the client wanted that file back — because, let’s face it, it’s their music, they should be entitled to make changes to it and work further with it and not be locked in to me necessarily, as the service provider — would it be reasonable in the contract to say, yes, you are able to have those files, but you as the client are not permitted to then use those settings in other works or other compositions. The enforceability of that, who knows if that’s even possible. But the intent, at least, to protect both partners in the agreement.
Jim: In theory you could provide for that by contract. Yes. I’ve seen people try to do that. I’m aware of a situation that arose in a European country with a very high-end engraver who took the view that his changes to the basic template of whatever program he was using — I won’t say which it was that he did in the course of doing work for a client, that he had a proprietary interest in those. And would not allow anyone else to [use it.] Even though the client had paid for the engraving, he wanted to ensure that the client continued to use him.
Obviously, if everything had been great, this would not have been a problem, but apparently something wasn’t. Like most of these things, you know, it was settled. And I can’t talk about the terms of the settlement, but let’s put it this way: people have taken that position.
Philip: Right.
Jim: And it got them a conversation.
Philip: Yeah.
Jim: Whether it would necessarily end well, I have no idea.
Philip: Yeah. Bottom line: if you are entering into an agreement with someone, either as the person who was hiring somebody to do the work or the one that is taking on the work, make it clear what the deliverables are, and certainly how those deliverables can be used. Most of the time, as long as that part is clear, at least in my experience, there are no issues, because that’s settled upfront. But yeah, like you said, Jim, you know, somebody says, well, I’d like you to engrave my music, and then it’s not clear what that deliverable is — and how it’s defined — that can start tripping up some folks.
Arranging and covers
You know, you mentioned, Jim, we were talking about arranging. And things like: what about something like a cover? You know, we don’t encounter this so much in the concert music world, but certainly in the pop music world, we encounter covers all the time. Like, somebody like,your band! Your band that you play and sing, and, and all the rest of it, isn’t that an arrangement?
Jim: Yes, it is. The performing rights society licenses [it], and we never play anywhere that doesn’t have one. It’d be awful hard for me to be playing in an unlicensed, uh…
Philip: Yeah. That’d be kind of bad for him. Yeah, wouldn’t it?
Jim: Yeah, it wouldn’t look good.
That license gives a group the latitude to perform to suit their instrumentation, but only for public performances. That doesn’t cover recordings. It doesn’t cover any kind of audio-visual or anything like that. I mean, it reflects the reality that you can’t buy an arrangement of most pop songs for a six-piece group, or three-piece group, or whatever. It would negate the value of the performing right license if there was some other hoop that had to be jumped through, but you’d have to have to contact the publisher for permission to do it. In those kinds of circumstances, there’s an implied license to suit the style of the performers.
Philip: Okay.
Jim: That does not apply in the concert field at all.
Philip: In that case, the owner of the copyright, whether it’s the composer or the publisher, would have to specifically authorize an arrangement for a specific purpose.
Jim: That’s absolutely right. The one somewhat slight exception to that: in the compulsory license for making of sound recordings. And I realize that we haven’t talked about that yet.
Philip: That’s okay. We’re talking about mechanical licenses.
Jim: Right. Mechanical licenses. If you get a statutory mechanical license, you have the right to arrange the work for purposes of the recording. That doesn’t give you the right to use that arrangement anywhere else, except if the ASCAP/BMI situation is also applicable. But I’ve never seen that used in the concert field. If it’s a rental work, the recording rental agreement will say that the work must be performed as written; no cuts, no alterations. And that’s a contractual obligation.
Philip: This does bring up an important point. Let’s just say, David, you have a composition and then somebody wants to arrange it in a medley for a pops orchestra. And I know, Jim, that you had said that that is not permissible, based on what you just said. But that is also something that we have seen quite a bit.
And then there are some instances where those rights are being given, kind of on a proactive basis, we see something from Hal Leonard and Noteflight, and something called ArrangeMe where there is a catalog of titles — a catalog of songs — that you can go on and you can arrange them, and then put your arrangement up for sale. And you get 10% of the royalties. That is a derivative work, meaning that the copyright in that arrangement vests with the original copyright holder.
But they have kind of devised this system where, let’s face it, this was kind of what ASCAP and BMI were set up to do for performing rights, I mean. Which is that, to avoid the tedium of trying to track down every copyright holder, every time you wanted to perform something, there was kind of this clearance system that was set up with that right. And now we’re seeing that, in some respects, with arrangement. It’s not quite the same; I don’t want to confuse the issue too much, but they have started to try to make it easier for people who want to — like you said, a six-piece band, or their own bespoke arrangement — to do that legally.
Jim: Yeah. It’s kind of like a blanket license in that someone has gone out and contacted, you know, all the different publishers involved, or identified works as being in the public domain, and made the list of which ones can be arranged and which ones can’t. Again, if it’s done with the permission of the copyright owner, that’s all wonderful.
Philip: Right.
Jim: Whatever the copyright owner wants to do, they have the right to do it.
Philip: Yeah.
Jim: And they also have the right to say no.
Philip: Yeah. Going back to our earlier part in this conversation where we’re talking about “whack-a-mole”, and talking about the ways of balancing that tension between the practicality and the ubiquity of the digital format. You know, it’s not all gloom and doom here. If there is a way to do it legally and practically, and everybody basically keeps creating music in the process, then hopefully one or many of these solutions will be able to be available to people to do with what they like. And that is why these different rights, or different types of rights, have evolved over time, because whoever’s responsible has identified ways in which they need to, kind of say, we can do this, but not that. And so on down the line.
Jim: The more that we can do that, we need to do that in other fields as well, if we can. But there are some types of uses that are of such value, I can’t imagine for example, that there would ever be, any kind of a licensing agency with compulsory, or blanket licenses for theatrical works. Because the value of those, whether they’re operatic, or musical theater, or ballets, and also the sensitivity and the wanting to make sure that they’ve done in a way that the copyright owner is happy with, and all that sort of thing.
So that’s never going to happen. But for these kinds of things where there’s the potential of hundreds and hundreds and hundreds of thousands of individually relatively low value transactions, this kind of licensing model is, the most efficient.
David: Every situation is so different. It’s really hard to generalize.
Jim: Yeah. And you remind me, I ought to record a short disclaimer that I’m not speaking on behalf of any clients or organizations with which I’m affiliated, and this is not legal advice. If they have need for legal advice, they should contact a qualified practitioner.
Philip: I can drop that in.
David: We just got that recording.
Yes. But I think that’s exactly the thing that comes up anytime I’ve spoken with anyone in the publishing business, anyone who’s an attorney this field, is: when you ask a generic question, like what about a circumstance where blah, blah, blah, blah, blah, blah, blah. Well, the hypothetical doesn’t have enough specificity to give a good answer, right? Because every situation is different in some small ways, but in sometimes the small ways are really meaningful.
Fair use
Jim: I may hate myself for doing this, but there’s one big third rail we haven’t stepped on yet, which is fair use.
David: I would love to talk about fair use.
Philip: Yeah. So let’s talk about fair use, and the exception to the copyright.
David: Yes. My students come with questions about this a lot, because, you know, “Well, I’m a student and I just want to use this little thing for them.” Well, you know, also you still have to buy textbooks.
Philip: Yeah.
David: You can’t just, like, photocopy the textbook even though, you know, whatever.
Philip: “I’m only using six bars. I’m only using 30 seconds. I’m… I’m not, charging for it. I’m not doing that.” We’ve heard all these things, none of which are actually valid reasons to use copyrighted material, but let’s talk about what is fair use.
David: Because there’s so many urban legends and misunderstandings.
Philip: Yeah.
Jim: Yeah. Sure. Well, fair use is part of the copyright law. It is Section 107. And it is a distillation in the 1976 copyright law of a lot of case law that had developed. Because the rights of the copyright owner, as we discussed earlier, are phrased almost like commandments, you know, “Thou shalt not copy.” “Thou shall not make a derivative work,” you know, without the permission of the copyright owner.
And there had to be a little air let into this system. So what the courts started to do and what the Congress eventually put into the law is, it says, if an alleged infringer says that as a defense — now, think about that already. You’re in court and you’re trying to mount a defense. If you say that, you know, this is fair use, there are factors that the court is going to look at.
They’re commanded to look at all four, even if some of them are not applicable to a given situation and they are: One, the purpose and character of the use, including whether such use is of a commercial nature or for non-profit educational purposes. That does not mean that every commercial use is presumptively unfair; it does not mean that every educational use is presumptively fair. It’s a continuum. Things that are non-profit educational use are more likely to be found to be fair use than somebody wanting to use a Super Bowl commercial — you know, music in a Super Bowl commercial, which is never going to be fair use.
Philip: So can I maybe put that in practical terms? Let’s say there is a two-second excerpt of something, that is definable and you want to put it in a scholarly article and attribute it correctly and all that. Most likely, that is fair use of that snippet. Again, making generalizations here. But if you want to take that same two seconds and sample it and create some sort of commercial composition, that is a very different animal entirely.
Jim: Yes, it is. There is a practice in the academic field of clearing those kinds of small quotations. And generally, you know, whether a individual publisher will charge or not charge a given situation is entirely up to them.
Philip: Right.
Jim: There is at least a very strong tradition of asking.
Philip: Yes. Again, not to presume that you should just go and do it without asking permission, but again, talking about the defense.
Jim: Right.
Then the second factor, which is never a problem in music for the copyright owner, is the nature of the copyrighted work. If you are going to quote out of the phone book, that’s a bunch of facts. That’s more definitely going to trend towards fair use. If you want to quote a piece of music, which is a creative work, that’s not going to be a barrier to the copyright owner saying that this is not fair.
Philip: Okay.
Jim: Then the third, and this is the tricky one: the amount and the substantiality of the portion used in relation to the copyrighted work as a whole. This is where you get your 30-second rules and your 50-word rules, so-called. There are no such rules. Absolutely not. Each use has to be evaluated on its own. Amount is easy. You take a lot, you’re not going to have fair use as easily as if you take a little.
But what is substantiality? Substantiality may mean, it’s the hook of a song. It’s the thing that makes it important. The quintessential case that established this principle was theGerald Ford memoirs. The Nation magazine got a hold — without any wrongdoing on their part; they were given, without authorization, the person who gave it to them didn’t have authorization — a copy of the not-yet-published manuscript of Gerald Ford’s memoirs. And they rushed out, in their next edition, a news article which says “Gerald Ford pardoned Nixon for this reason.”
And immediately, I think it was Time magazine was going publishserials before the book was published. They canceled the contract. The publisher was all upset. They went to court. It went all the way to the Supreme Court. The Supreme Court said, well, amount: not very much. Substantiality: it was the only thing anybody cared about.
So, verdict for Gerald Ford’s side over it being fair use — even in a news broadcast or a news article.
Philip: Isn’t that also the essence of the Blurred Lines case, with Marvin Gaye and —
Jim: Yep. That’s where it goes. Then the fourth factor, which is the one that really usually tips the scales, not always, but often. The effect of the use upon the potential market for, or value of the copyrighted work.
If you’re taking something that most people pay for, you ought to pay for it too.
Philip: Right.
Jim: I mean, if students get free copies of printed publications, then maybe they have a good excuse for saying that they’re going to take chunks of it and put it into a published article. But if they’re expected to buy it, then they can’t usurp the market for it.
So that’s fair use. It’s really tough. An old lawyer had a I don’t know if it was a joke or not — but he used to say, “Yeah, they come in, they tell me this story. I pull my chin, I scratch my head. I think about it. I say, ‘Well, you might have a case.’ Then I send them a bill.” So…
Philip: Well, we know that that’s not your general practice, Jim.
Jim: No, it’s not, it’s not. I generally don’t send the bill, but… One other thing I’d just like to keep in mind.
Philip: Please.
Jim: When in doubt, if you want to use something that belongs to somebody else — remember, you’re using something that you know belongs to somebody else — if you want to do that, when in doubt, ask. If the copyright owner says no, and you are still sure it’s fair use, you haven’t hurt yourself. You can still go ahead and do it, but you’ll know that you’re likely to get at least a nasty letter. It does not weaken your position to ask.
And what I sometimes do is I write to the copyright owner and say, you know, my client wants to use a few bits and pieces from your work. You know, we consider this to be fair use, but we want to make sure we give proper credit. This is the credit we propose to give. If you want to change it, please be in touch. And then, they do, or they don’t come back. And sometimes they come back and says, the hell this is fair use! So we’re going to see you in hell and whatever.
And, you know, sometimes they say no, use the ampersand instead of the ‘and’ in our name, but…
Philip: Yeah. At least you’ve put that out there, and you’ve made a good-faith effort to do the right thing.
Jim: Yeah. And again, I absolutely agree that fair use is real. It should be able to be used, but it is a tricky thing to figure out what it is. And it is only to be decided by applying the four factors. No rules, no principles that have ever been put into the law. Having said that, there are some guidelines that were adopted in 1978 for educational use. You can photocopy, if somebody has left their part home and they’re about to go into the concert or something like that, but that’s a whole different situation.
Philip: Yeah. And intent does play a role here. I mean, you have to take the totality of those four factors into consideration and they all play into it every one of them.
Well, Jim Kendrick, you have certainly been more than fair with our use of your time today on the Scoring Notes podcast. This really just opens up so many discussions. I think that people, if they’re not having already, should have, and continue to explore on their own, hopefully in some cases with the advice of an attorney. And other cases, just be aware that with great power comes great responsibility, as we sometimes quote it here as well on Scoring Notes.
I really can’t thank you enough for taking some of your time to share your experience and wisdom with us. I know that all of our listeners really appreciate it.
Jim: You’re very welcome. It was a pleasure to be here, and very happy to answer questions there are any.
Philip: Terrific.
David: Thank you so much. And thank you, Jim, for your time. It was nice meeting you.
Jim: Nice to meet you too, David. Thanks.
Philip: And thanks to you at home for listening. We will talk to you next time.