Copyrights - An Introduction for the Piano Teacher |
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John M. Zeigler, Ph.D.
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iano teachers work in an inherently creative environment. A natural consequence of that fact is that they will be exposed to, use, and perhaps even create copyrighted material virtually every day of their teaching lives. The purpose of this article is to summarize and explicate some of the relevant aspects of copyrights for the working piano teacher. Our goal in this short article is to provide an introduction to copyrights and how they might be encountered or used by a piano teacher. We will also provide some links to definitive sources of copyright information where those with a need may gain a more extensive understanding. Note that we will not offer legal opinions in this article and nothing in this article should be construed as representing in any way the views of a qualified copyright attorney or cognizant court. We strongly encourage you to consult an attorney if you have questions which are not adequately answered by information here and in the links we provide here.
A copyright is in effect as soon as a composer writes down his
composition or an author completes the writing of a book or article.
What Is a Copyright?
This is a seemingly simple question about which there are several common misunderstandings. A copyright is created for the author of essentially any creative and original product of his own efforts from the moment that author reduces it to "fixed form". In essence, this means that a copyright is in effect as soon as a composer writes down his composition, an author completes the writing of a book or article or a computer programmer writes the program to a CD-ROM. For the typical text document bearing illustrations, you can copyright the text, photographs of your own creation, artwork, the compilation of multiple chapters, and editing. If you improve or update the document, you should re-copyright the improved version in the same way as the original, excluding from coverage any of the previously present material. Names and short phrases, even if original, cannot be protected by copyright, although these may be trademarked.
What Is Copyright Registration?
One does not need to register the copyright with the copyright office for the copyright to exist, although registration provides a number of additional advantages over what I will refer to herein as the "inherent copyright". Thus, the mere fact that an author has not been granted a registered copyright does not mean that the copyright does not exist. An important consequence of this for users of the Web is that, even if a Web page does not bear a formal copyright notice, the page cannot be freely copied unless a notice is present that specifically states that the author has placed that page in the public domain.
In the United States and many foreign countries, a process exists by which an author can obtain additional protection for inherently copyrighted works by registration. Copyright registration in the U.S. is very different from the U.S. patent system. A patent application is usually written by a specialized patent attorney, reviewed and checked against pre-existing patents and scientific literature by a patent examiner. Assuming that the patent application is found to describe a new and useful product, composition of matter, or process, a patent issued, typically 18 to 24 months after the filing of the patent. Patent costs can easily run $20,000 or more, plus regular maintenance fees of over $1000.
Registering a Copyright in the U.S.
The registration process for copyrights simply involves filling out (currently) a two page form, meeting certain deposit requirements (i.e. providing a copy of the work) to document the fixed form of the work, and paying a fee, currently $35 for the "Single" form or $55 for the "Standard" form, to the Register of Copyrights at the Library of Congress. Different registration forms are used for different types of works. Computer programs have their own separate form, as do musical compositions, video, etc. If you don't use the Electronic Copyright Office (eCO, see below), you must read the regulations to make sure you file on the right form for the class of work you are submitting.
Copyright registration is sufficiently straightforward that most individuals can file their own copyright registrations without need of an attorney, although there are unquestionably circumstances in which use of an attorney is wise. You can get information about the copyright law, deposit requirements, and even the necessary forms from the U.S. Copyright Office Home Page. Copyright registration becomes effective upon receipt of a complete set of all the necessary forms, deposits, and fees by the Register of Copyrights. You may, or may not, get some correspondence from the copyright specialist after the filing. Such correspondence is usually helpful, often strengthens your copyright, and worth responding to rapidly. Usually, a few months after you register, you will receive back from the Copyright Office a copy of the certificate of registration. Prior to March 1, 1989, a registered copyrighted work, by law, had to carry a copyright notice much like the one at the bottom of this page. This is no longer required, but still highly recommended. Once registered, the term of the copyright is normally for 75 years after the death of the author.
The Electronic Copyright Office
Copyright filings and updates can also be done electronically through the Electronic Copyright Office, a part of the U.S. Copyright Office Home Page. Once you have registered a user name with the eCO, you can fill out the forms online, pay the fee, and submit the deposit of the work as an electronic file or files. This is much easier for most people than filing with the paper documents, as well as faster and cheaper. You pay the fees with a credit card online. You can check the status of any or your filed copyright applications at any time through the eCO, once you have registered. For most individuals, the eCO is the best way to do copyright filings.
Give yourself plenty of time to fill out the form online and check it carefully for errors or omissions before you submit it. Pay particular attention to the exclusions part of the form. You cannot copyright again your own material that appears unchanged in an updated work, nor can you copyright quotes or works of others as part of your work. Exclude them when you fill out the form online.
Once you have filed with the eCO, it will probably be several months before you hear anything. Sometimes, you'll simply get the copyright in the mail. On other occasions, you'll be contacted by a copyright specialist with the Copyright Office asking for more information or with objections to what or how you have filed. You can usually resolve any problems by email with the specialist. There is absolutely NO guarantee that an updated or upgraded work you have copyrighted previously in the same way will be accepted in a new filing, as the requirements and interpretations of the law are constantly changing with time and copyright specialist, especially as regards deposit requirements.
Copyright law has evolved rapidly in the last 25 years, so even if you think you know how to do it, it's best to use all the help available when you file. There is a good deal of help, available at virtually every step in filling out the registration form, to assist you in the eCO. It will help you avoid mistakes that can slow down action on your filing, if you take the time to use the available help as you fill out the online form. Because copyright law, regulation and application are constantly changing, particularly regarding the specifics of deposit requirements, it's best to check the "final authority", the Compendium of U.S. Copyright Office Practices, if you have any doubts. This document is over 1000 pages long, so accessing and searching it online is the best way to use it.
Why Register a Copyright?
Registration provides a number of advantages that help protect the copyright claim and make its enforcement easier. A partial list of the advantages of registration would include:
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Registration establishes a public record of the copyright, strengthening the copyright holder's position in a case of infringement.
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If registration is made before or within 5 years of first publication of a work, it establishes evidence of the validity of the copyright.
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If registration is made within 3 months of first publication, the author will be entitled to additional "statutory damages" and attorney's fees in case of infringement. In the absence of such timely registration, the author can recover only actual damages and profits. From a recovery and exemplary standpoint, this may be the best reason to register, since the statutory damages and attorney fees are often far larger than actual damages. Such additional damages are a prime "stick" that the author can wave against infringers to stop infringement without need of a lawsuit.
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Registration also allows the author to register with the U.S. Customs Service to prevent importation of infringing copies of the work. This has become increasingly important, given the globalization of world trade and the (often, intentionally) poor enforcement of global patent and copyright conventions in some foreign countries.
Given the low cost and relative simplicity of copyright registration, the advantages provided by registration far outweigh any reasons not to register.
Using Copyrighted Works
Using copyrighted works inappropriately and without the permission of the copyright holder can, and often does, carry very large penalties, so large that it is never worth the risk of infringing a copyright just to save a few dollars purchasing the work. Serious and intentional copyright infringements are criminal. Penalties range to $500,000 and five years in prison for first offenses and double that for subsequent offenses.
There are some very limited conditions under which you can use copyrighted material royalty-free without explicit permission from the author, under the so-called "fair use" doctrine of copyright law. A complete discussion of the "fair use" doctrine is well outside both the scope and length of this article, but we provide the following quote from the U.S. Code to give you sense of how it works:
"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." 17 U.S.C. 107 (1988 ed. and Supp. IV).
An example of what this may mean is that if you copy a piece of copyrighted music a thousand times and sell the copies for profit, you are almost certainly violating the "fair use" doctrine and will almost certainly be sued for copyright infringement. On the other hand, if a student buys a copy of a piece of music and you make copies of short sections of the music to mark up to aid in teaching the music to the student, you are probably exercising a "fair use." Similarly, if you make a single printout of a page of a copyrighted Web site for your own non-commercial use, chances are you are exercising a fair use; if, on the other hand, you duplicate large sections of the Web site without permission and then sell them to your students or reproduce them on your own Web site and represent them as your own work, chances are you are in a lot of trouble!
The examples I've chosen are extreme to illustrate some of the principles of "fair use." Ultimately, the decision about whether a particular use of copyrighted material is "fair use" is made by the courts; if you have doubts, the safest course by far is not to use copyrighted material without permission or at least to consult an attorney before making a questionable use of copyrighted material.
Note that making "trivial" changes to the copyrighted material like rearranging the order of it or removing parts of it does not remove liability for copyright infringement. If this sounds a little like "rearranging the deck chairs on the Titanic", it is! In fact, doing this would remove any possible argument that the infringement was "accidental"; it is likely that a court would consider this "bad faith" on the part of the infringer. Similarly, admixing another author's work with your own original work without seeking permission and explicitly acknowledging that author's work can get you sued and may be used as an argument by an infringer to eviscerate or invalidate your copyright! If an author can prove that you have inappropriately used copyrighted material beyond the bounds of the "fair use" doctrine, you will be held liable and will probably end up having to pay not only the author's actual damages, but the additional statutory damages and attorney fees described above.
To learn more about "fair use", consult the U.S. Copyright Office's Fair Use documentation or the Stanford University Library's Copyright & Fair Use site. Educators of all sorts should also consult the U.S. Copyright Office's Circular 21 on reproduction of copyrighted materials by educators and librarians.
Copyrights and Web Sites
Early in the history of the World Wide Web, there was a great deal of discussion going on about the impact of the global Web on the applicability and enforceability of Web site copyrights, given the fact that such documents are instantaneously globalized by the Web. For example, a California court decision in 1995 held that even the copies of Web pages transferred to the viewer's RAM were covered by the copyright. This opinion seemed to run contrary to the idea that most Web site authors want their sites to be read! Similarly, there was even some discussion about whether the mere linking of the site violates the site copyright. However, that discussion related to a limited set of circumstances in which the linking is done in such a way as to make the ascertainment of the true authorship difficult or impossible (e.g. in certain frame-based Web site implementations). It seems likely that the average Web author can safely link other Web sites in most cases. If you are in doubt, request permission to provide a link to another site.
Web site copyrights are considered just as enforceable as copyrights in any other medium. Therefore, the basic rule is: Don't copy the site unless it specifically states it is in the public domain or until you have obtained explicit permission. Don't think that, because you live in an isolated area or have a small web site, you can violate others' copyrights by plagiarizing their material on your site. Search engines are available to everybody, everywhere. If you plagiarize copyrighted material from someone else's site, chances are that you will be caught.
Unfortunately, the overwhelming majority of site owners make no real provision for reprinting pages or graphics from their sites by third parties, complicating the picture further. The Piano Education Page is one of a very few sites on the entire Web which has a specific page giving explicit conditions and instructions for reprinting from the site. Until other site owners adopt and publish reprint policies, one must be careful to obtain permission for use under well-defined conditions from the site owner. There are also copyright issues for the writer of the Web site; in particular, one has to be very careful to read the license on commercial clip-art if you want to use it on your Web site. Many times, the license specifically forbids reproduction for other than personal purposes and may also forbid electronic transmission. Again, the best policy is to seek permission from the copyright holder if you have any doubts about the license terms or, better yet, use only materials created by you.
Handling Infringements
Web sites, in particular, make copyrighted material available anywhere in the world, instantaneously and largely anonymously. This means that there can be a great temptation to infringe copyrighted web sites by plagiarizing them, often verbatim, and, in some cases, for pages at a time, on one's own site. I have found such blatant infringements of parts of The Piano Education Page over 50 times! In a couple examples, the piano teacher infringers had copied parts of PEP so completely and for so long that they had forgotten the real source of their material. They accused me of infringing their sites and threatened me with infringement actions! Needless to say, these situations did not end well for them.
A great deal of third party documentation of the content of web sites exists, including one's copyright deposits for those who have registered copyrights. If your site is plagiarized with some frequency, it's easy to build into the code hidden markers which can prove infringement (e.g. "Copyright [your name]"). With search engines, it's easy to find infringements of frequently plagiarized distinctive text by searching for it. If you have copied someone else's web site material into your own site, be forewarned that some site owners might be watching! If, after considerable research and the creation of good records of the infringement, you must stop a proven infringer, usually the best course is simply to demand in writing that the infringing material be removed. Repeat infringers should be sued.
Final Thoughts
If it appears to you that reproducing copyrighted material is not as easy and safe as you might have thought, you're right. Fortunately, copyright law does provide sufficient latitude that piano teachers can still teach with copyrighted material without fear of lawsuits, so long as they recognize the existence and purpose of copyrights. If you have inadvertently (or not so inadvertently!) infringed a copyright, the best policy is to be forthright and honest about it, stop the infringement immediately, and accede to any reasonable demands made by the author. If you intend to seek legal counsel before you try to resolve the infringement, say and do nothing without the advice and approval of your counsel. In the end, the best protection from copyright infringement problems, as well as many of life's other travails, is knowledge, good faith, and honesty.
Last updated: 02/02/24