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Part I

As a dancer, choreographer, teacher, or studio owner, you need to know how copyright law affects you. It is a highly complex and technical body of statutes and court decisions, rules and exceptions, but you have to know how to comply. The following is a simple introduction to a very complex subject.

Copyright law is the expression of fundamental public policy: the artist must be encouraged to produce art because art benefits society. As an incentive, the law requires that for each use of a copyrighted work, the artist must be recognized and paid.

Although society and the artist share an interest in making the work available as widely as possible, in its strictest application, copyright law would prevent or discourage dissemination of the protected work of art. How, then, are the conflicting interests reconciled? Balancing the interests of the artist against the interests of the public is precisely what creates the complexity of the law of copyright.

How does copyright law affect you? In the studio, you depend on recorded music. If you are fortunate enough to have an accompanist, he or she depends on sheet music. Do you have to obtain permission, that is, pay a fee, whenever you turn on your CD player?

The short answer is yes. When you buy written or recorded music, you pay only for the personal use and enjoyment of that reproduction. The price of the recording does not include the right to use that reproduction in public or to copy audiotapes or burn CD’s and distribute copies. Every recording carries a warning, usually in small print: “all rights reserved,” “unauthorized copying, public performance… prohibited,” “unauthorized duplication is …subject to criminal prosecution.” In general, use of the recording for any purpose other than personal enjoyment requires permission.

How do you go about getting permission?

First, find out if you need permission. There are three licensing organizations that represent music publishers. The fine print on the jacket or liner notes will tell you which organization to contact. If no licensing organization is listed, check with the producer or distributor. Contact information is provided below.

If the music you need is subject to copyright protection, apply for a license, which is analogous to a subscription. For a presumably modest annual fee, you will be able to use music “legally.”

There are exceptions.

You may well be able to use a particular piece of music freely under one of the several exceptions created by statute and Court decisions. But be wary. Exceptions are narrowly construed.

Here are some examples: the statute limits the length of time a work should be protected. When the copyright expires, the work is said to be in the “public domain.” Similarly, it is fair to allow not-for-profit educational institutions to use protected work for “face-to-face” teaching and certain performances. And Courts, recognizing circumstances that justify the free use of protected work, created the “fair use” doctrine. More detail next month.

A Word of Caution

There have been reports of harassment by overly aggressive licensing agencies. If you have been threatened in any way, call the police!

Contact information:

American Society of Composers, Authors & Publishers (ASCAP)
1 Lincoln Plaza
New York, New York 10023
Telephone: 800 505 4052
Facsimile: 770 805 3475
Web site: www.ascap.com

Broadcast Music, Inc. (BMI)
320 West 57th Street
New York, New York 10019
Telephone: 800 925 8451
Facsimile: 615 401 2829
Web site: www.bmi.com

SESAC, Inc.
55 Music Square East
Nashville, Tennessee 37203
Telephone: 800 826 9996
Facsimile: 615 321 6292
Web site: www.sesac.com

Part II

The general rule is, you need a license to reproduce recorded music or sheet music or to use recorded music
publicly. Except…

To encourage artists to create, the law gives them a monopoly over their work. But the law recognizes that there are circumstances in which society’s interest in having free access to artistic work outweighs the interest of the artist. In the presence of compelling social interests, the artist’s monopoly is no longer justified and the public may use the artist’s product without payment, license, or restriction.

Just what are those circumstances? When does protection of the artist become unfair to the public? Copyright law represents an attempt to reconcile the competing, and conflicting, interests of the public versus those of the artist. And the difficulty in so doing is reflected in the complexity of the law.

It isn’t fair for an artist to enjoy his or her monopoly forever.

The initial term of protection and the right to renew are determined by statute. The first copyright law, enacted in 1790, established a 14-year initial term, renewable if the creator was still alive, for another 14-year term. Historically, each time the statute has been amended, and it has been amended many times, the term of protection has been extended. Protection commences immediately and automatically when the work is created and may be renewed by the creator or his or her surviving spouse or estate. Under the most recent amendment, the Sonny Bono Copyright Term Extension Act of 1998, the term of protection of renewed copyrights on works created before 1978 was extended to 95 years; for works created after January 1, 1978, copyright protection lasts for the life of the artist plus 70 years.

Whether a copyright has expired depends not only upon when the work was created, but also to whom the work is attributed. If the creator is anonymous or uses a pseudonym or creates work in the course of his or her employment (“work for hire”), the duration of the copyright differs: the 1978 law provides for 75 years from publication or 100 years from creation, whichever is shorter. And if the work is the result of a collaboration, under the 1998 amendment, the protection lasts for 70 years after the death of the last surviving artistic partner.

When the copyright expires, the work is said to be “in the public domain” and may be used, reproduced, or performed freely.

As a result of the General Agreement on Tariffs and Trade Treaty, however, on January 1, 1996 copyright protection was restored to some works previously considered in the public domain, among them works by important ballet composers like Prokofiev and Stravinsky.

“Fairness” dictates some unrestricted use of copyrighted material.

The Courts, in deciding actual lawsuits, have developed a body of law (“case law”) called the “fair use” doctrine. Case law has the same binding effect as statute, but because it evolves out of real controversies, it is applied much more strictly. Ironically, the “fair use” doctrine is extremely limited.

Examples of “fair use”:

When a performance is “imminent”, copies may be made to replace already purchased copies. When a work has been edited or excerpted, it may be copied and distributed, though not for public performance. When a work is no longer available or if only the larger work is available, teachers may make a single copy of a performable unit.

Not-for-profit educational institutions may use protected work for actual (“face-to-face”) teaching purposes, but this exception has been interpreted to mean universities and primary and secondary schools, not schools of dance.

You may even use protected work for performance if there is no commercial purpose whatever and if performers are not paid and if there is no charge for admission or if the net proceeds are used for educational or charitable purposes.

Even if one of the examples describes your situation perfectly, check with a knowledgeable professional first. Remember that “fair use” means whatever the Courts say it means, and the Courts only get involved when there’s a lawsuit.

Before you decide to take a chance on using recorded music, consult your attorney.

This is intended to introduce you to the complicated area of copyright and to alert you to the pitfalls of using recorded music. Read the cover and liner notes of your recording carefully and call the publisher. If you still think you may be at risk, ask your attorney for a referral to a copyright specialist. •