John Howell wrote:
At 6:39 PM -0500 11/13/06, dhbailey wrote:
This is an interesting copyright question -- since the Finale file is
simply one more representation of the music which the client holds the
copyright in, I'm surprised he would assign you a copyright in the
file, since you can't do anything with it as it represents his
copyrighted work, just as he can't do anything with the finale file he
has granted you copyright in.
I had a similar reaction to Hamilton's post. Would not the Finale file
be a derivative work, done for hire, with the copyright vested in the
copyright owner of the music? (Just in case someone in this discussion
is outside the U.S., page layout has never been covered by copyright in
the U.S., unlike in some European countries.) But then I've never
understood how copyright works in the case of computer programs, which
can be a can of worms in academia where someone may have started writing
a program while employed at one university, perhaps funded by an outside
source, and continue writing it at two other universities! But of
course a Finale file is not a computer program. Or is it?
Hey, David: Go for the law degree!!
John
Thanks for the encouragement! :-)
I think that a Finale file is more likely to be considered as a data
file, since it can't do anything without the Finale application, but
even so it is still just a different representation of an already
copyrighted work. There is nothing that I've read in the copyright law,
nor heard about in case law (not that I've read much of that) that says
the copyright law is restricted to graphical,
on-physical-media-looking-obviously-like-the-original copies. So
WordPerfect's program code is copyrightable by Corel Corporation, just
as Finale's program code is copyrightable by MakeMusic, but the
wordperfect-produced files of my original works are not copyrightable by
Corel, nor by me to any extent other than the copyright coverage which I
own in the original works represented by those wordperfect files. The
same goes for Finale files of my original music -- I own the copyright
because I own the music. MakeMusic can't claim copyright in files
representing my music. That's what burns my butt so much about how
their SmartMusic program works -- when I create a SmartMusic
Accompaniment file of my original work, I still can't use it with their
SmartMusic program without paying them an annual subscription fee, which
also opens thousands of other accompaniment files for my use, which I
don't want. They are charging me to use my copyrighted materials, even
though they have no legal right to collect money for the use of my
copyrighted material without paying me a royalty.
In fact, a musical performance, even though recorded on a CD and
therefore just another "computer program" stream of ones and zeroes, is
still subject to the same copyright law which protects the original
piece of music. The performance can't occur legally except for in some
very restricted situations without payment of a royalty to the owner of
the copyright of the original music, handled through the various
performance rights organizations. There is in recent years also a
copyright in the PERFORMANCE, but not in the cd-creation (of course the
artwork is copyrightable as a separate copyright). So the two
copyrightable aspects of a performance are 1) the original music and 2)
the performance. Nowhere is the medium itself on which the performance
is presented copyrighted. What gets the pirates in trouble isn't the
duplication of the medium -- it's the duplication of the two copyrighted
aspects (three, if they duplicate the artwork as well). Since they are
so closely linked (recording and medium) it is easy to confuse what the
pirates are actually charged with pirating under the law.
So the Finale file, being in reality nothing more than the same binary
sort of representation which is the CD digital basis, would be no more
copyrightable than a physical CD is copyrightable. It's important to
remember that the circle-P on a phonorecord is indicating copyright in
the sounds which were recorded, not the piece of plastic itself. So
that the same performances presented on different media (LP, cassette,
8-track, CD) are all covered by the same circle-P copyright in the
recorded performances.
But of course, these are just the ramblings of a non-legally-trained
mind. :-)
As for David Fenton's withholding the source files for his work, as well
as engravers withholding their Finale files, I have no complaint about
that if that's how they choose to work. It makes great sense, so that
the work they have already provided is protected and any changes are
done by an educated person who understands the project and not some
neophyte without a clue. But that's not the same as claiming copyright
in those files. For David's source files, he quite likely is able to
claim copyright in that code, since it has been upheld in court that
computer programs are copyrightable. I believe, however, that data files
are only copyrightable to the same extent that the underlying data is
copyrightable.
I am torn about whether to release my Finale files or not, and so I make
that a point in any contract for engraving which I undertake. I explain
my reasoning, listen to the client's reasons for wanting it one way or
another, and if we agree that they get the Finale files, I add a clause
that because the files will be out of my control, any further work
required of me on those files will be billed at $50/hour, with a 1-hour
minimum.
And I have no problem in using special fonts which are on my machine and
which I don't have the legal right to share -- I simply don't share them
and the client can worry about figuring out how to make up for missing
fonts. I produce the product I am contracted to produce and provide a
product I can be proud of and can collect the full fee on without a pang
of guilt of having done a less than high-quality job. If the client
opens those files on a different machine, that's their problem and may
well send them back to me to neaten things up. Which is easy since the
original fonts are on my machine.
As for any personal settings or templates which are included in those
finale files I give to clients, I view them much like the skill of a
carpenter or plumber or electrician I hire to work on my house. They
have spent a lifetime developing their own working methods and know how
best to get a good result (or I wouldn't have hired them to begin with),
yet I can watch and learn those same techniques. I've never hired such
a professional who has said I couldn't watch, and I've learned
techniques that they've taken a lifetime to develop, which make it
easier for me to do similar repairs without paying them.
There's only so much "working behind a veil in a darkened room so nobody
steals MY work" that I'm willing to get an ulcer over worrying about.
Others, of course, probably feel quite differently. But if you think of
other professionals you hire, very few of them have that same "you can't
watch or you might learn my trade secrets and then I'd have to kill you"
mentality.
Life's too short for that.
--
David H. Bailey
[EMAIL PROTECTED]
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