Copyright Infringement

• Aug 11, 2016 - 18:48

I did a score of a song that was removed because of a Copyright Infringement. I honestly don't know how copyright laws work on Musescore (Or in general). If i were to upload a cover of a song, do I have to get permission from the owners of said song before i upload to Musescore? Obviously there are a lot of covers on Musescore, and i honestly don't know how they're able to upload all of them without one really getting a copyright infringement. Additional information on Copyright laws and Copyright Infringement would be much appreciated.


Comments

In reply to by Jojo-Schmitz

What really confuses me is how exactly do I email the owner of the song? Do they have like a gmail account or something? What exactly do I say? Do I just email him/her saying just "Can I cover your song on Musescore?" Im only 16, I don't really have much experience on copyright laws.

In reply to by A.Gallo

How can anybody answer your question without knowing what song you're talking about?

At any rate, odds are extremely high that permission will not be given. But asking is not hard.

Dear Mr./Ms. _______,

I'm a 16-year old musician interested in writing down the music for ______. I understand I can't legally share that without your permission. Would you be kind enough to authorize this? I would be very grateful. Thank you.

Sincerely,
____________

In reply to by Isaac Weiss

The song was The Rain Song by Led Zeppelin. This was very useful. I thought it would be a little awkward emailing Jimmy Page for permission to upload a song to Musescore. He is one of the most famous musicians ever, and I thought the odds would be slim of him reading some 16 year old's email would be very very slim.

Ordinarily, licensure of performance rights are handled by a Performing Rights Organization (PRO), e.g. ASCAP, BMI, or SESAC.   (And, if you compose and/or publish music, you should belong to one.   It isn’t expensive ...)   Details of membership and of licensing are provided in great detail on their respective web sites.

Copyright laws are uncompromising and strict.   (As they should be!)   If anyone even suggests that there might be a violation, a web-site is going to immediately take the material down.   (Again, as they should.)   The enforcement and the penalties are a fire-breathing dragon.   (This is by design.)

But, the first responsibility must be yours, by not posting copyrighted material, and by exercising “due diligence” in proving the ownership status of anything that you do post.   Covers are protected and generally should not be posted anywhere, unless you have first secured the express permission to do so from the PRO and you can prove it (in advance).   The posting of a cover does not qualify as “fair use.”

(By the way, PROs are actually more lenient than you might suppose about granting permission to student composers to share covers they have written, subject to certain conditions.   The enormous difference is:   a-s-k, first!   Then, get your answer in writing.)

Copyright laws are the only thing protecting us as artists and composers, and protecting the industries that we [maybe ...] work for or work with.   Those laws need our respect, and understanding.

P.S.:   Also, do not forget that the so-called “Doctrine of Laches” puts the monkey on the back of copyright-owners, too!  

Laches is associated with the maxim of equity,   “Equity aids the vigilant, not the sleeping ones [that is, those who sleep on their rights].”   Put another way, failure to assert one’s rights in a timely manner can result in a claim being barred by laches.

If the owners and their agents do not actively work to patrol their rights, and do not act consistently and equitably with regard to every apparent violation of their rights, they can lose(!) those rights forever.   Their actions must be “attentive, timely, impartial, consistent, and documented.”   They are not allowed(!) to pick targets.   They may not make exceptions, nor take their sweet time.   They “turn a blind eye” only at their grave peril.   They act against you in part because they must not “not act” against you, no matter who nor where you are.

This is a great part of what a PRO does on the artist’s behalf.   They’re out there every day, minding their fences.

In reply to by mrobinson

@ mrobinson: As a composer and publisher with a particular interest in this highly-complex area of law, I applaud your participation in this discussion. It is obvious from where I sit that you are better qualified than most to address the question of what constitutes 'fair use' in various jurisdictions, and thus able to offer reliable guidelines to the many young users of MuseScore who might otherwise be confused about what they may and may not do using the software.

Would you be willing to share your expertise for a Handbook page on this subject?

In reply to by Recorder485

I don’t consider myself to be an authority on the subject ... and, most importantly, I am not an attorney.

At least in the United States, the Copyright Office itself has posted a number of resources (each one inevitably accompanied by a “We’re Not A Lawyer™” disclaimer).

For example:

In this last page, the authors said it very well like this:

Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports.   There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work.   Whether a particular use qualifies as fair use depends on all of the circumstances.

My own personal experience with PROs (apart from now belonging to one ...) has been very positive:   if you ask for permission, you most likely will get it ... accompanied by legal covenants that you easily can live with.   The very-critical thing is that you actually did ask, and then that you “minded your P’s and Q’s” about what they told you that you must do and whatever verbiage they told you that you must include.   And-d-d-d that you kept squeaky-clean notes about all of the foregoing exchanges.

It is quite obvious that any intellectual-property owner most fears the words, “public domain.”   That something proprietary to them might somehow enter the public discourse, unchallenged, and bearing no proprietary notations at all.

However ... at the end of the day ... nothing beats the documented opinion of an actual, qualified, lawyer.   Which I am not.   (Although I have retained one for more than a dozen years ...)

In reply to by mrobinson

Although I have appeared pro se before a number of upper-level courts in both the U.S. and Canada, I am not a licensed attorney either. I have been a lay student of the law for 40+ years, and have a fairly comprehensive knowledge of the two or three specific areas of law that apply (or applied in the past) to my own life, both professional and personal. Your knowledge of copyright law is more detailed than mine, in spite of me having filed my first copyright in 1971, so kudos to you.

The problem today is that as technology has made it easier and easier for John Everyman to take physical possession of someone else's intellectual property, the younger generation has come to regard this as the natural state of affairs. I was called to order a few weeks back by Thomas Bonté for having expressed a rather hard-line opinion in regards to a user who was seriously annoyed that his 'hard work' in making an arrangement of something to which he did not have rights had been taken down for copyright infringement. It had not occurred to me that the user in question might be only 14 or 15 years old, and might indeed need to have his 'copyright consciousness' raised.

It seems to me that a really good page in the MuseScore on-line Handbook on this subject would be a major plus, particularly if it were written in terms that the younger users could wrap their minds around.

In reply to by Recorder485

I feel a bit differently about that. I do agree that 'copyright consciousness' should be raised. But I don't think the MuseScore handbook is the right place. The MuseScore handbook is about how to use MuseScore. If we start adding a page about copyright laws, we would quickly also need a page about orchestration, harmony, how to tune a banjo etc... and it will rapidly become harder to find the right information.

In reply to by lasconic

@Nicolas-- I understand your point, and you are correct. Something like this does not really belong in the Handbook for the reasons you state. I was obviously thinking of the Community Guidelines page on musescore.com when I wrote that. Sorry for the confusion--'My bad,' as they say these days. ;o)

Is there any sort of contributor portal for musescore.com which would enable us to help educate the younger users who seem most in need of understanding this complex subject? The information on that page is good as far as it goes, but it doesn't go very far. It is very general and does not define a number of important concepts, such as what constitutes 'publication', nor does it offer any advice on how rights to publish an arrangment of a copyrighted work can be obtained.

In reply to by Recorder485

My first copyright – for a poem – was filed in 1978.

It is probably a better thing to refer-to this topic on the forum, perhaps with a “sticky.”

We certainly could have a paragraph in the manual at some appropriate place which simply stresses that musical scores are property and that posting the same on the Internet is publishing. Then, perhaps, include a hyperlink to the “sticky” forum topic. (I of course have no objection to any of my words being part of it.)

I think that it’s also important to emphasize to people, in general, that copyright law exists to protect them as the originators of a creative work, and that as creators they should want to respect it.   For example, the person who worked so hard on his transcription/arrangement probably could do fifteen minutes’ worth of Internet research, contact the appropriate PRO, and promptly secure the permissions that s/he needs.   The score, now bearing the proper copyright notice and “Used By Permission,” along with any other verbiage specified by the owner, could now legally be published if done so in compliance with the owner’s terms.

The crucial thing is “to ask first.” I so-happen to publish a software product that incorporates another product. At the very beginning of that endeavor I read their license agreement ... and I had a question. So, I sent an e-mail. After they picked themselves up off the floor in surprise, they said, "Sure!" To which I replied: "I thought so. Now, would you please send me a letter to that effect, on your company letterhead?"   Couple of days later the letter arrived in the mail, signed by the lady to whom I had been in conversation:   "so-and-so, Esquire," signed with a certain flourish. This letter promptly went into my file. Well, I still(!!) sell that software product (for 20 years now!), and I still have that letter in that file.   The product’s documentation still cites the original copyright notice for the ancillary product and it still says:   “Used By Permission.”

I don’t think that most owners per se “want to be” obstreperous, but the law as-written really gives them no choice.   I first read about Laches in a book on the Peanuts comic strip, in reference to a nursery school who had painted Snoopy on the side of their building. I recall that the school had to buy a license to keep it there. It wasn’t that Charles Schulz (RIP) was opposed in any way to their nursery school, but the law does not allow anyone to pick favorites. Once they became aware of the unlicensed use of the character, they had to act against it in exactly the same way as they would against any other unlicensed use.

In reply to by mrobinson

This is untrue in Europe, and I believe most Berne Convention signatories, at least with respect to copyright law.

In Europe, a work enters Public Domain in these steps:

  • Last remaining natural person that has contributed to the work above threshold of originality/creativity dies
  • Wait until 70 years pass
  • Wait until the next 1ˢᵗ January

Some editions are protected for 25 years past publication only, though.

In at least Germany, there’s also not the concept of “Fair use” as in America. To cite an existing work, there are heavy things you must do (use only smallest possible excerpts, only to support massive amount of own creative and critique work).

The MuseScore servers are in Russia, I think… that makes things even more fun.

It will be of great interest to MuseScore software site owners to follow closely the upcoming trial of the entrepreneur Kim Dotcom who is being prosecuted by the US DOJ for the "crime" of secondary copyright infringement by publishing files on his servers.
Should this case succeed (and I believe it will) then it will require all ISP's and site providers to police their websites to ensure secondary infringement does not occur.
The cosy arrangement negotiated by Google et al of merely being a conduit will go out of the window (oo err).
For information all the computer severs were impounded and will not be returned no matter the outcome of the trial.

In reply to by crm114

It is definitely an abuse of terminology to refer to this person as an entrepreneur or as anything but a fairly obvious lawbreaker.   They captured 150 terabytes of information from his servers, and it was basically all copyrighted material.   The racketeering and money laundering charges are also very likely to stick.

The determination with which law enforcement officers in two countries have pursued this case make it quite clear that they don’t think they’re wasting the taxpayer’s money.

Whether or not he himself uploaded any material to his servers, he nevertheless provided the servers upon which to upload, and brazenly encouraged others to do so in defiance(!) of the principles of copyright and intellectual property.

Owners of web sites around the world are already obliged to patrol what is loaded onto their sites and to take-down allegedly infringing materials promptly.   The “innocent infringement” defense has already been tried and rejected.

Recorder485

Entrepreneur
definition (look it up)
"someone who starts their own business, especially when this involves seeing a new opportunity"
eg "He was one of the entrepreneurs of the 80s who made their money in property".

I'm pleased MrRobinson is one of the guilty 'till proved innocent brigade (saves the cost of a trial I suppose).
As for your "obliged" comment, please see Google vs. Warner Bros.

Well, if it's Fair Use, make sure you put a detailed, assertive copyright disclaimer in the description. Normally, covers ARE fair use, and hence, if you're a United States citizen, you actually don't need permission, as it's already legally protected as Freedom of Speech. Fair Use is not copyright infringement, no matter how much companies want to believe otherwise.

Here's an example disclaimer for my organ arrangement of Parting from Pokémon Mystery Dungeon: Red Rescue Team (Look for it):

This is an organ arrangement of Parting from Pokémon Mystery Dungeon: Red Rescue Team. As it is a fan-
made arrangement, it is transformative in nature and is hence Fair Use, USC §107. I claim no rights to
Pokémon, as it is the property of Nintendo, GAMEFREAK, Creatures Inc., and Satoshi Tajiri. Also, I claim no
rights to Mystery Dungeon, as it is the property of Chunsoft. If any party takes legal action against this score, it is a violation of the rights I have as a United States Citizen under the First Amendment of the Constitution of the United States of America, and I reserve to challenge any said party in the Supreme Court of the United States of America if any legal actions are taken against said piece.

In reply to by SgtMooshroom

Creating a cover of a copyrighted song is not considered fair use in the US (or probably anywhere else). The copyright statutes give only very broad descriptions of fair use and do not specify all the details of what qualifies; this established more by case law. But there exists no case anywhere in the US to establish a precedent that cover song is fair use.

For more information, please consult a lawyer, or at least read some of the widely available information on the subject, such as https://www.copyright.gov/fair-use/more-info.html (the official US goverment site).

In reply to by SgtMooshroom

@ SgtMoosroom: There are so many incorrect statements and assumptions in your post that one hardly knows where to begin correcting you, so I'll attempt to follow the Red Queen's advice.

  1. 'Covers' are NOT allowed under the doctrine of Fair Use. That doctrine is embedded in copyright law in order to allow reviewers and scholars to publish SHORT extracts from a copyrighted work for the purpose of journalistic or academic discussion, and to do so without going through the (lengthy and ofttimes expensive) process of obtaining permission from the copyright holder.

  2. You have cited section 107 of the 17th chapter of the United States Code in support of your argument, but it appears you do not understand what it says. Section 107 reads as follows:

'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 substantiality 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

(Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2546; Pub. L. 101–650, title VI, § 607, Dec. 1, 1990, 104 Stat. 5132; Pub. L. 102–492, Oct. 24, 1992, 106 Stat. 3145.)

In that your 'cover' arrangement of the Pokeman theme meets NONE of the criteria specified in Section 107, it should be obvious that your arrangement is NOT covered by the doctrine of Fair Use under U.S. law.

  1. You have cited the first amendment to the constitution of the United States in support of your argument, but from your comments it does not seem likely that you have ever READ the actual text of that amendment or (if you have) that you understand what it says. The amendment reads as follows:

'Religion and Expression. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.'

Note that NOTHING in that amendment grants any individual (such as yourself) any specific right or rights. The amendment simply prohibits the CONGRESS of the United States from doing certain things. The end result is that there are no federal laws prohibiting you from kowtowing to the god of your choice or from speaking your mind, but there is nothing in the amendment that prohibits the Congress from legislating against the theft of intellectual property...and the Congress HAS done so. There is a huge difference between the freedom to speak YOUR mind and being allowed to steal the original thoughts of OTHER minds.

  1. You seem to be labouring under the misconception that you may say anything you like at any time under any circumstances. This is not true, even in the United States. The prohibition against abridgement of free speech is NOT an absolute freedom (as interpreted by the courts over the 200+ years since that amendment was written). For instance, you do not have the right to shout 'FIRE' in a crowded movie theatre when there is no fire. Speech of that sort is proscribed, not by statute, but by a jurisprudence which recognises the overriding damage such speech can inflict upon the body politic.

  2. Your disclaimer is worse that useless in this context. What it says is that (a) you recognise you do not own the derivative work, and that (b) you insist on using it anyway as the basis for your 'cover' arrangement. That is equivalent to walking into a courtroom and saying, 'Yes, Milord, I copied the work of the registered owners, and I know who they are, but if any of them sue me, I'll take it to the Supreme Court!!!!!' Good luck with that argument.

Finally, the Supreme Court of the United States is the only court in that country which is not obliged to accept any case on appeal from a lower court. The US Supreme Court CHOOSES the cases it accepts, and It only accepts those cases which present new and previously undecided legal questions of major importance. (In addition, even were the Supreme Court to accept your case--highly unlikely--it would cost you between $500,000 and $1.5M dollars in legal fees to prosecute it. If you have that kind of money, you would do far better to spend it on lawyers who would tell you pretty much the same thing I'm telling you for free.)

I had been wondering about the copyright issues on quite a number of the entries. I presume some copyright owners are more proactive about requiring stuff to be removed.

I have emailed several publishers concerning arrangements for my U3A recorder group. So far one lovely reply who said fine. One who wanted to charge £50 for a Christmas carol!! And several no reply. Sony are worst for not replying. For me no reply means fine. We only play the pieces a few times. The only things I have put online the composers are well dead. I am not making any money and the U3A is a charity. There a lot of midi files on line.

Just to add my bit...

I wanted to arrange Stevie Wonder's "Higher Ground" for my (very) amateur Big Band here in England. I can't remember how I found out who owned the copyright but I got permission, having also to put this at the top of every first page:

Higher Ground
Words and Music by Stevie Wonder
Copyright (c) 1973 Jobete Music Co., Inc. and Black Bull Music
Copyright Renewed
This arrangement Copyright (c) 2017 Jobete Music Co., Inc. and Black Bull Music
All Rights Administered by Sony/ATV Music Publishing LLC, 424 Church Street, Suite 1200, Nashville, TN 37219
International Copyright Secured All Rights Reserved
Arranged with Permission of Hal Leonard LLC for the exclusive use of P'Boro Big Band

........at a cost of $100 for my pains. It would have been much cheaper just to buy the arrangement...but less challenging!

In reply to by onscuba

@onscuba: Thank you for that comment and for Doing the Right Thing. :)

But you are probably underestimating the cost of a professional big-band edition. About 15 years ago I bought the Glenn Miller Band's original arrangement of 'American Patrol' and the score and parts cost me close to $100US even then. It is almost certainly higher now, so a fee of $100 for permission to publish your own arrangement seems quite reasonable.

In reply to by Recorder485

Hi Recorder
I buy professional arrangements for my band all the time (and have done for the last 35 years). The $100 I paid does NOT give me permission (as I understand it) to publish it at all. Merely to arrange and perform - by my band only.
I could have bought Mike Tomaro's version from Hal Leonard for $55 - half the price I paid and without the sweat!.
It just seems odd that pubs and clubs up and down the country have rock bands playing every weekend who have arranged pop and rock tunes and they do it for free.

In reply to by onscuba

In the US there is a BMI/ASCAP licensing system that covers various levels of playing/reproducing music that is under copyright. Somehow they pay the copyright holders for these performances. I know this is how it works with Square Dancer callers and DJs, and I suspect it is some how extended to live performances of existing copyright music.

In reply to by onscuba

Sorry if I misunderstood what you got for your $100 fee. In that there are several types of 'rights' one can be granted, it can rapidly get too complex for anyone but a professional (read: copyright lawyer) to figure out. There are Grand Rights and Small Rights (each administered differently); there are also such things as 'sync' rights and 'rental' rights, and almost certainly others about which I know nothing because they do not apply to my baroque music publishing business. One's head aches just thinking about it all....

As to those 'bar bands' playing whatever is on their set list every Friday and Saturday night, the bar or pub most likely holds a license from a major performing rights organisation (PRO). In Canada, it would be SOCAN; in the US it would be ASCAP or BMI. I don't know which PROs license music performances in the UK. But the PRO collects fees from all license holders based on a number of criteria (size of venue; number of hours of music performance per week; etc.), and then apportions the total to composer-members according to a formula which makes actuarial calculations seem like first-form arithmetic.

OtoH, an individual performing rights license would normally be needed by performers who self-produce in a venue not operated by a PRO licensee. In other words, if your band rented a hall and sold tickets, you could theoretically need a performance license of some sort for every piece you performed that was under copyright. This would be true even if you paid Hal Leonard the $55 and played EXACTLY what was on the pages in that authorised arrangement. Performance rights are not the same as the right to make and publish your own cover arrangement. Buying an authorised arrangement does NOT grant you the right to play it in public for profit.

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