At 1:53 AM -0600 8/27/07, Noel Stoutenburg wrote:
John Howell wrote:
But you still wouldn't have, and couldn't have, without permission,
the text, so the logic of what your suggest escapes me. What would
be the point?
The point is to provide a mechanism by which one inspired to write
music in response for, or as a setting of, a text subject to
copyright can compose the music in a manner which does not violate
US statutes. For my purposes here, I am assuming that anyone who
decided to use the text in a performance would be motivated to
obtain a copy, and if use were anticipated in a situation where
performance royalties were required, would deal with those in an
appropriate manner, as well.
OK, I had not thought in that direction. But I must point out that
over the years, many clever schemes for making end runs around the
law have been tried, only to crash and burn when taken to court.
Yes, your scheme would make it so that the composer is not liable for
taking and using copyrighted material without permission (although
I'm not sure that an instruction "to be sung to the words of" would
pass muster in court). But U.S. law is a bundle of separate property
rights, each considered separately under the law, and each
administered separately under the law.
You mention performance and performance royalties, and it is good
that you consider this because it is a separate right that belongs to
the copyright owner. In your scheme that involves both the copyright
owner of the music (whose copyright does not include the text) and
the copyright owner of the text (whose copyright does not include the
music).
And yes, poetry is perhaps unique in the arts, in that it can be read
privately or performed publicly, and while I'm not an attorney I
assume that when it is performed publicly, whether at a poetry
reading, in a coffee house with bongos, or attached to a piece of
music, it comes under the performing arts provisions of copyright
law, and performance royalties are due and payable and collectible.
But by whom? ASCAP and BMI have no interest in the poetry, since it
is not included in the copyright of the music, and it is they who
would normally split the performance royalties between the composer
and the poet. In fact I doubt that there IS any performing rights
organization handling the performance of poetry.
So who is the copyright owner of the poetry going to take to court?
The performer for not securing a license to perform? Or the composer
(and publisher, if one could be found that is stupid enough to
support this scheme), whose names are on the infringing music and who
have addresses where suppoenas can be served? And THAT is when the
defensive scheme will come before a judge and its legality or
illegality will be exposed and become precedent.
And you think publishers won't sue other publishers?
John
--
John R. Howell
Virginia Tech Department of Music
Blacksburg, Virginia, U.S.A 24061-0240
Vox (540) 231-8411 Fax (540) 231-5034
(mailto:[EMAIL PROTECTED])
http://www.music.vt.edu/faculty/howell/howell.html
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