Copyright Law and Fair Use

I recently engaged in a discussion on social media regarding the free distribution of music scores in an academic setting.

This post is intended for music students and their teachers in both studio and classroom contexts.

There appears to be some confusion as to the terms of “Fair Use” and its application to educational materials, which, in applied music studio situations and in the classroom, includes music scores.

Section 107 of the current U.S. Copyright Law lists Four Factors to determine whether reproduction of a  “Fair Use.” The text of this section is below:

§107 · Limitations on exclusive rights: Fair use 

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

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 

(2) the nature of the copyrighted work; 

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 The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. 

The third and fourth factors are the most relevant points regarding Fair Use and its application to studio and classroom teaching.

In short, It is illegal to freely copy and distribute music scores in any format without the written permission of the copyright holder, who is typically the composer or the publisher. This applies to studio music teachers, students, and to the general public. Those who do so are essentially “limiting the market for or the value of” the work that they are reproducing. More simply put: distributing music scores without permission of the copyright holder is stealing from music creators and publishers.

Here are a few legal sources that back this up:

Stanford University’s summary of Educational Uses of Non-coursepack Materials is a very clear one. 

Under the heading “Rules for Reproducing Music,” is the following:

A music instructor can make copies of excerpts of sheet music or other printed works, provided that the excerpts do not constitute a “performable unit,” such as a whole song, section, movement, or aria. In no case can more than 10% of the whole work be copied and the number of copies may not exceed one copy per pupil.

In addition, it includes a list of what instructors may not do with copyrighted sheet music:

Instructors may not:

• copy sheet music or recorded music for the purpose of creating anthologies or compilations used in class
• copy from works intended to be “consumable” in the course of study or teaching such as workbooks, exercises, standardized tests and answer sheets, and like material
• copy sheet music or recorded music for the purpose of performance, except for emergency copying to replace purchased copies which are not available for an imminent performance (provided purchased replacement copies are substituted in due course); or
• copy any materials without including the copyright notice which appears on the printed copy.

The National Association for Music Education (NAfME) has an excellent summary of how the U.S. Copyright Law applies to music teachers, including college professors:

Well worth a read in full, this site contains two very clear lists:

Music educators can do several things, without having secured permission of the copyright owner:

1. Make a copy of a lost part in an emergency, if it is replaced with a purchased part in due course
2. Make one copy per student of up to 10% of a musical work for class study as long as that 10% does not constitute a performable unit
3. Make a single recording of a student performance for study and for the school’s archive
4. Make a single recording of aural exercises or tests using copyrighted material
5. Make up to three copies to replace a copy that is damaged, deteriorating, lost, stolen from a public library or archive (or if the existing format has become obsolete, and if, after reasonable effort by the library/archive, an unused replacement cannot be obtained at a fair price)
6. Make one copy of a short verbal or a graphic work for teacher’s use in preparation for or during a class

The following, however, are expressly prohibited:

1. Copying to avoid purchase
2. Copying music for any kind of performance (but note the emergency exception above
3. Copying without including a copyright notice
4. Copying to create anthologies or compilations
5. Reproducing materials designed to be consumable (such as workbooks, standardized tests, and answer sheets)
6. Charging students beyond the actual cost involved in making copies as permitted above

If you have further questions about Music Copyright Law and Fair Use, I strongly recommend reading this essay by Ronald B. Standler, a Massachusetts-based attorney who specializes in copyright law. It focuses on the problems related to copyrighted published sheet music, and is intended for music students, music teachers, and composers.

Here’s the thing:

I compose, publish, sell, and distribute music that I have created for a living. I’m basically a small-business owner. I love my job. I’m not rich. I probably won’t get rich. But I enjoy creating music and collaborating with others to make music and art. I love working with performers not only to create new works, but to foster excellent performances of my music.

If you are a music teacher and there is a legitimate financial hardship that prevents you or your student from purchasing my music, please contact me. I have, on occasion, gifted my scores on request for reasons that I felt were warranted. I am a reasonable guy, but I cannot always guarantee that I can give anything away. 

Please be respectful of any composer’s wishes regarding the use and distribution of their music scores. Just like everyone else, they have the right to make a living.