Published in RPM 26 (Summer 1998)

Shall IASPM take Action?
July 1998: the first copyright debate
on IASPM's international mailing list
image83.gif (5786 Byte)

Initial question on Tuesday, 7 July 1998 by
Ian Inglis: Does anyone have an authoritative answer (or know where such an answer lies) to the legal position regarding the quotation of musical/lyrical extracts in articles and books? Recent advice given to me (from competent sources) has included: 1. academic work/scholarly reviews need no copyright permission at all; 2. permission is required for anything other than the song title; 3. permission is only needed for extracts of more than four lines. You might be interested to know that the fee demanded by ABKCO when I contacted them for permission to quote brief extracts from five Jagger-Richards compositions was $7500!!! ($1500 each).

Kevin Dettmar: The basic problem, it seems to me, regards how we are to define "fair use". Our copyright legislation protects copyrighted material from being used without permission unless that use is "fair use": i.e., I'm quoting material from "In-A-Gadda-Da-Vida" not to profit from someone else's intellectual property, not to pretend that it's my own text (which would be plagiarism), and not to impair Iron Butterfly's ability to make a living from their work. Traditionally, scholarly work, esp. published by university presses and academic journals, has made use of this fair use provision to quote reasonable amounts of primary text in order to perform its analyses. But no one knows exactly how much can be quoted and be considered fair use. Part of the problem is that the definition is "context sensitive"; 2 lines of WC Williams's "The Red Wheelbarrow" is 25% of the poem, whereas 2 lines from T. S. Eliot's _The Waste Land_ is a less than .5%. Etc. That notwithstanding, many publishers of literary scholarship have in-house rules of thumb regarding quotation of copyrighted material: for one publisher I worked with, for instance, it was no more than 25% of a poem, and no more than 500 words total from a novel. But these guidelines are really just guesses about what we might be able to get away with; the only way we might someday get a definitive answer would be for some publisher to be sued, so that the courts would clarify the matter. With music, no one is willing to guess what fair use might be; one friend (who is on this list, and may want to weigh in here), says simply that music publishers don't acknowledge the "fair use" doctrine: any use is unfair use, and they want to be paid for it.

The standard that I hammered out with my publisher, which was then sent to their legal counsel for an opinion, was that we would quote no more than two consecutive lines from any given song. That simple. Our position, in effect, is that if that isn't fair use, then scholars have no ground left to stand on. It doesn't mean that we couldn't be, or won't be sued; but we don't think that will happen. My editor at Columbia talked to editors at both Duke and Harvard, both of whom agreed in principle with the rule of thumb we came up with, and neither of those presses has been taken to court for any of the music texts they've published.

The real danger, it seems to me -- and here I speak only for myself -- is that scholars will be cowed by the music publishers into asking for permission in all cases because we're afraid of these suits; this is what happened, I think, when Cecelia Tichi wrote to all the relevant music publishers to request permissions for her book _High Lonesome_. (Moral: she got soaked; and once you ask, you can't then quote without permission and plead "fair use." You've already acknowledged that you think you should pay.) I wouldn't think twice about quoting four lines from a W. H. Auden poem, even though permissions to reprint his work typically cost $50/line; why then should I be afraid to quote two lines from The Knack? Not that they're not accomplished artists, of course, but there does seem to be a reverse snobbism at work here.

In summary, then: quote only when there's no other way to make the point, or to make it powerfully, effectively, convincingly. Quote the absolute minimum amount that serves to make your point. Never quote so much that you have to set it as a block quotation, for this will more likely put the permissions police on your trail. But if your conscience is clear on these points, I'd say (to paraphrase Martin Luther), quote boldly. Let's not let cultural studies die of inanition because we're denying ourselves access to the objects of our inquiry.

David Sanjek: My perspective on this matter comes from a dual perspective: that of a Popular music scholar (institutionally unaffiliated) and a participant in the music industry (my day gig is the director of the BMI Archives). To begin with the professional realities.

Geoffrey P. Hull: There are no hard and fast rules. It falls under the rubric of what is called "Fair Use." and is covered in the U.S.A. under Title 17 U.S. Code, Section 107. That provision (and a lot of court cases interpreting it) says to determine whether a use if "fair" (meaning may be done without permission or license) one must consider the following: (1) the nature of the use, including whether it is non-profit educational, (2) the nature of the protected work (is it a creative for-profit work), (3) the amount and substantiality of the portion taken (this is what gives life the false statements that four lines is OK. Taking four lines may not be OK, especially if the work is only four lines long, or they are the guts/hook of a song.) and (4) the potential impact on the economic value of the protected work.

That (academic work/scholarly reviews need no copyright permission at all) is not a bad rule of thumb, as long as the use is not in a textbook or trade book. Even then, the use can be of so much of the work or so long standing and repeated that a license may be required.

Titles are free to use in such a manner. They are regarded as not protected by copyright under the legislative history of the act and several court cases. Note, however, that they may be protected under several doctrines of unfair competition. Don't try, for example, to write an new song with the title "White Christmas." Most publishers will ask that you get permission for anything from a song other than the title. They just don't want to get sued.

(Permission is only needed for extracts of more than four lines) Don't go by this. There are too many "Ifs, ands, buts, and maybes" associated with fair use to lay down such a rule. It is likely to get you in trouble.

All of this stuff is highly negotiable. If you really want them, call back, explain the nature of the publication and offer them a *small* fee based on the nature of your use.

Anahid Kassabian: I've often wondered why lyrics are treated differently from poetry, and Kevin's comments seemed reasonable to me. His response, however, doesn't cover music... Here's my little bit of experience. Same piece, two different publishers, brief transcriptions of 4-16 bars, no more than one from any given piece, but several from each film. I was concerned because the films were big studio money-makers. One publisher said transcriptions don't require permission. The other required permissions, which cost on average $25-$50 a shot. Getting them was much more trouble than paying for them, in the end, because no one on the other end knew what they were doing, so they just ignored the requests. One sane recommendation I got (maybe from Dave Sanjek?) was to suggest a fee, because recipients of these requests don't have formulae. So it's possible that had Ian's request found its way to different hands, he might have been charged something reasonable...

It might make sense for IASPM to find some ways to consider these issues. SCS wrote policy that is now standard on frame enlargements and publicity stills for film scholars--until then, they also were in a mess. Perhaps we should form a committee, include a lawyer member or friend, and draw up a set of recommendations, which could then be handed out to publishers?

Rob Walser: I would add stress to one part of Dave's excellent message: everything is negotiable. In the course of clearing permissions for _Running with the Devil_ (total: $1500) and my forthcoming _Keeping Time: Readings in Jazz History_ ($5000), I always appealed fees I thought were too high and I was given reductions about 90% of the time. One fee for music and lyrics was reduced from $1000 to $150, simply because I pleaded academic penury. Generally, I emphasise that my books are academic, that the print runs are comparatively small in the publishing world, and that the permissions are usually paid by the scholar, not the publisher. I sometimes point out flatly that unless I get a substantial reduction, I won't be able to afford to use the material at all (read: so they'll get nothing).

For the first book, I encountered one artist's representative who didn't even want to talk about permission, at any price. My publisher agreed to go ahead with about six lines of lyrics and nothing ever happened; as Dave said, we're off their radar. In two other cases, my letters went unanswered, so I went ahead and used as much as I wanted (that's why there are surprisingly lengthy quotes of lyrics in the last chapter). For musical examples, most publishers didn't seem to care whether I used one measure or the whole piece; the price was the same. I've heard that U. of CA press has published several books without seeking any permission for musical examples; they're taking the hard line that scholars must be able to provide evidence for their arguments, and that the economic value of copyrights is not harmed by such publication. But few publishers are that bold.

For my second book, the situation is different; since it's an anthology, fair use arguments don't hold. Nor would they be fair; I've paid several $100-200 fees to authors who offered use of their text for little or nothing simply because I think they ought to get something for letting me include it. On the other hand, I've been soaked by a big New York publisher who was not impressed by the academic penury argument; I decided the piece was worth it and paid. One other publisher I contacted called frequently, trying to push me to pay an enormous fee, even though (I discovered just in time) the rights had reverted to the author, with whom I struck a mutually satisfactory deal.

A third kind of experience has come up with the rock and roll history I'm writing for Norton. On the one hand, because there's some money at stake, they'll probably be very nervous and picky about permissions. On the other hand, they're handling all of the permissions requests for me and paying for the first several thousand dollars (not charged to my royalties); we're splitting whatever exceeds that.

I'd like very much to see more presses take a harder line on the freedom to quote (texts, lyrics, music, images) for purposes of scholarly demonstration and critique, and it seems to me that universities ought to be in the business of pursuing such freedoms actively. But we're usually left on our own to sort out and negotiate these problems; sharing our experiences may help us to evade gouging and economic censorship.

David Sanjek: To pick up on a comment in Anahid's notes, don't assume that publisher's possess codified policies. If we've learned anything about industrial entities, it's that they possess a significant degree of internal disharmony. One dept. often doesn't speak to another. {Know that one from experience.} Even one lawyer at a company may well set policy as he/she sees it, not as a matter of established protocol.

Yes, IASPM should attempt to create a set of recommendations and then join together with others, like the music caucus I've called for within the ASA. Another old sawtooth: change is brought about by mobilising constituencies with common interests.

Reebee Garofalo : To weigh in on the copyright discussion here are some of my recent experiences:
1. For my recent Rockin' Out: Popular Music in the USA (Allyn and Bacon, 1977), I was told unofficially that anything more than one line of lyrics would require a permission. 2. I am also working on a CD-ROM on the history of US Popular music. In this instance, I have been told that under the provisions of fair use, I cannot use more than 30 seconds of a song and I can only make one use copy and one back-up copy of the CD.

My own view is that academics should be bouncing off the wall about the anti-educational aspects of copyright, particularly the ever-increasing limitations on "fair use," which prior to the 1976 revision was virtually any non-profit use. For those who are interested, the Fair Use Guidelines for Educational Multimedia were codified in 1996 and can be found at the following website: [http://www.indiana.edu/~ccumc/mmfairuse.html]. Note that "Appendix A: Organisations that have endorsed these Guidelines" is composed mainly of trade and other organisations which stand to benefit from exploiting the "revenue streams" that Dave Sanjek talked about, and that it is a significantly different list from "Appendix B: Organisations participating in Guideline Development". For example, while American Association of Higher Education (AAHE), American Library Association (ALA), National Educational Association (NEA) participated in developing the guidelines, they all ended up not endorsing them.

I have long felt that academic organisations should be taking formal positions on this stuff and making our voices heard. We were asleep at the wheel in 1976, and for the most part we are asleep at the wheel now, and sooner or later the current trajectory is going to make our jobs, especially those of us who use Popular media in our teaching, impossible. I would be very happy to join any effort to open up a space for real educational use.

Steven E. Gilbert: One exception I know for sure about academic quotation is that if you cite something in epigraph style, it needs permission. The problem I see as endemic to Popular music is that it was never marketed with scholarly inquiry in mind, and so the publishing interests tend to range from indifferent to hostile.

When I first began my academic work on Gershwin 15 years ago, Ira's widow was still alive, and the lawyer for the estate was well aware of Ira's interest in having his brother's music studied. Since then, the Gershwin legacy has moved more in the corporate direction--so much so that not only the Gershwin name is trademarked, but even the title Porgy and Bess.

As the licensing manager of Warner-Chappell-Belwin-Mills said to me, "there's no such thing as 'just lyrics." If you quote lyrics in the body of a paragraph, I don't think you can be faulted for it, and that's where the four-line limitation comes in. If you set them apart--especially as an epigraph--you're fair game. As with sampling, it all depends on whom you're quoting.

Gilbert B.Rodman: The *pragmatic* answer to this question depends a lot on the publisher handling the book/journal in question. From what I've experienced myself and/or heard about from other people, identical types of uses (i.e., a handful of lyrics in the context of a scholarly article or book) will be treated *very* differently by different presses: Routledge (at least the London side of it, and this is just from what I've seen myself -- to qualify this heavily) seems to adhere to the principle that "reasonable" quotations are "fair use." Some other presses, however, seem to assume exactly the opposite: i.e., that *any* lyric quotation, no matter how brief, and no matter how scholarly the larger work, need formal permission before they can be included in the final ms.

None of which is to say that some music publisher can't or won't turn around and sue a press that adheres to the "fair use" principle -- and the copyright holders might even win such a case -- but regardless of what the real legal standing of the question is, the publisher you're working with may hold to a stricter (or looser) standard that you need to worry about.

It's also worth noting that asking for permission opens the door for music publishers to simply say NO and deny you permission to reprint those lyrics, regardless of what fees you might be willing/able to pay to use them. I know of at least one case where this happened (and where the press in question had been willing to publish anyway) and the author in question had to make some *very* hasty and extensive revisions to a journal article that had suddenly had holes ripped in it by the ornery music publisher in question.

Steven E. Gilbert: So far as I know, the trademarking of The Gershwins, _Porgy and Bess_® , represents a first as far as a title is concerned. Which leads me to gather that something like the rock-and-roll oldie "Summertime" would be impossible today. And regarding the following, Geoffrey's comments match my own experience. It helps to get on good terms with someone at the other end. My own permissions, for example, call for a limit of 10,000 copies, which I doubt will be reached anytime soon...or ever.

Keith D. Harris:

  1. This discussion has so far been confined to the US example. How might these issues work in other contexts? What about in the non-English speaking world? Apologies for the shameless promotion but there will be a panel on copyright chaired by Sheila Whitely at the IASPM UK conference next September.

  2. I hope someone is saving this valuable exchange of e-mails so it can be accessed from the IASPM web page.

  3. How might copyright work with 'unpublished' acts? In the punk and metal world (and also in a slightly different way, in the dance music world), demo tapes are widely circulated and sold. There is also an active tape trading scene that (for the most part) is accepted by the bands themselves, many of whom take part anyway. Obscure, ten year old demo bands are hardly going to enforce their copyright, even if they could be found for permission purposes. Might this not leave us in the rather distasteful position of paying fees to corporate bands who don't need the money but freely quoting from 'underground' bands simply because we can? If fees should be paid at all (and for academic work perhaps in an ideal world they shouldn't) shouldn't they at the very least go to the minnows of the music world? If a IASPM 'standard' in the way we approach copyright is to be set, we should not forget to set a standard of good practice with respect to smaller bands as well.

Michael Morse: In collecting copyright permissions (about 35 of them) for an upcoming book, I've been quite struck by the differences in attitude between European (esp. German and Dutch) and North American rights holders. I was told by one active German scholar that he never bothers (!) asking for clearances, because it's taken for granted that scholars have such use privileges.

All of this concerns written text, however. Has anyone had (equivalent) experience with European song publishers? (I gather from the Rolling Stones story that their copyright lawyers kick out the jams, too.) And, to the eminently reasonable suggestions that scholars need to organise and generate a coherent strategy, I wonder if a poster-child court case might not be the way to go.. that's assuming we could even get the attention of publishers in the first place. Rob Walser's stories about _Running with the Devil_ suggest that might be tougher than it first appears. His experiences suggest that these folks affect to care mightily when you're actually talking with them--but forget you the minute you're off the line.

Steven E.Gilbert: In Switzerland, evidently, the prevailing attitude is that lyrics are automatically public. There's a lyrics list, [http://www.lyrics.ch], whose wares are free to all. The downside is that they're not all taken down by Anglophones, so there are some strange things emerging. Such as "Woke up big this Chelsea morning," with the identified artist Fairport Convention (a group that never got a foothold in the States). It's still useful nonetheless.

Antti-Ville M Kärjä:

  1. Copyrights for scholarly journals and books in Finland: The last time I checked, for "scientific writing" you are allowed to quote practically everything you like in "the quantity demanded by intention" and "according good manners". needless to say, the loopholes here are infinite. the thing I'm sweatingly waiting for is the emergence of some EU(European Union)-directive altering all this in favour of the industry side. but, to my experience, to avoid all extra charges for copyrights is to shut up and quote ahead...

  2. Copyrights for songs (musically speaking): This just came into my mind, after reading someone's comments (sorry about this impersonality, but I could have just as well quoted all of the messages on the topic send to the list on Mr. Harrison: a couple of years ago we had a situation here in Finland in which a prominent hit song ("schlager") producer was driven into difficulties because of (un)intentional quoting/copying from Madonna's and Vaya-con-dios' songs - I think that the solution was that they had to credit the one song to VCD, and concerning the other they were waiting to hear from Madonna's lawyers. or, the yellow press ads saying: "Madonna's Lawyers will get in touch!" and, during the early 80s, one of the most significant rock performers of that time, Juice Leskinen, was accused of copying the entire verse from "Ferry across the Mersey" to one of his songs - the resemblance is apparent (to me, at least), but I think that no compensations were ever made.

  3. IASPM and vote of confidence on No-copyright fees: As a scholar, count me in. As a (seldomly) performing artist in (improbable) quest for a recording deal, and as a observer of Finnish Popular music industry having sympathetic thoughts towards the poor sods having been able to "make it", since in Finland, you can't live on making (Popular) music, count me out. But in the end, I believe, scholarly copyright fees wouldn't solve the problem for rock/poppers in Finland, so: I promise to sign any appeal someone would write on this topic.

Kevin Dettmar: Two things to throw into the mix. First, I had dinner with Anthony DeCurtis a couple of weeks ago, and we were talking about this problem, in part because I was waiting for my editor at Columbia to get back to me with word from the legal counsel. Anthony seemed surprised at all the hullabaloo; his surprise is attributable, in part, to the fact that he's done so much writing for _Rolling Stone_, and no one (artist, record company, music publisher) in their right mind would go after _Rolling Stone_, given the publicity value of being discussed in their pages. But Anthony also said that he's never heard of a writer being sued for copyright infringement for quoting lyrics in a piece of writing; in his opinion you only get into trouble when you start asking for permissions.

Second point, then I'm out: I'd add my voice the growing sentiment that IASPM should use whatever institutional muscle it has to prepare a statement on fair use in Popular music scholarship; I'd be glad to put my shoulder to the wheel, along with others. I know that in my recent negotiations and worries, I hankered after a document like the one Anahid mentions for film scholars, or the one the International James Joyce Association has endorsed (see [http://www.cohums.ohio-state.edu/english/organizations/ijjf/] if you're interested), to back me up. As many have pointed out, such a document has no legal standing; but I think it would be significant, if one of these copyright cases were ever to get to court, to be able to demonstrate that one was working in good faith according to the understanding of fair use as articulated by one's professional organisation. How do we get started? Is there a lawyer in the house?

Michael Morse: At the height of the bossa nova fad, Charlie Byrd tried to put out a song called "Samba Dese Days," only to be harassed by the publishers of Sophie Tucker's hit "Some of these Days," who claimed that his title was a "defamation" of their title. The Marx brothers had a similar run-in with Warner Brothers about their "Night in Casablanca." As the Groucho Letters (r) shows, they demolished the Warner's legal department by sending them ever more crazed versions of what the script would be.

Ted Friedman: Can anyone point me to a good theoretical, perhaps Marxist discussion of the political economics and cultural effects of copyright law? I've been studying the topic myself from a different angle, looking at "Free Software" movements such as Linux and Apache, the more radical adherents of which argue "copyright is theft." It does seem that if you know anything about either the computer or music fields, it's hard to swallow the argument that copyright exists to encourage creativity and protect artists. Artists typically get bilked out of copyright as the price to sign with labels (or at least used to - has that changed much?); after that, all their copyright does is pad the corporation's bottom line.

One other question: why are mechanical rights handled so differently from publishing rights? As I understand it, it's a very simple procedure to acquire the rights to _cover_ a song: you just contact ASCAP or BMI and pay a standard fee. As far as I understand, they rarely refuse. On the other hand, paying for a sample seems to be a much more expensive and iffy negotiation. Why the difference?

Ted Friedman: Rosemary Coombe, a law professor at University of Toronto and an anthropologist to boot, has written several very smart articles on copyright, from a postmodernist/marxist perspective. I don't have a specific reference on hand right now, but you should be able to come up with several titles through a library search engine.

This entire discussion, as several have noted, has been extremely useful. What's interesting is that you can find the lyrics for just about any rock or rap song you want posted somewhere on the World Wide Web, and I haven't heard of any efforts to shut these sites down for copyright violations.

Someone mentioned that one could probably quote from old and obscure releases with impunity--What about quoting lyrics of songs from foreign countries. My experience has been that when one asks for 'permissions' to use materials from Egypt, the first reaction is, folks don't know what you're talking about since 'copyright' is a pretty vague and un-enforced concept. The second reaction is to try to gouge you, since you'll be making unimaginable sums of money publishing a book in the West. I wanted to use images for an article I did for *Musical Quarterly*, was unable to obtain permissions (in one instance, I simply could not find the press, most likely because the publication was 'grey area'; in the other, the magazine in question never responded to my letters), and so the journal wouldn't publish the images (which are great!). On the other hand, *MQ* had no problems with fairly extensive quotations from lyrics by an Israeli singer, Danna International. (Now that Danna has become famous--she won the latest Eurovision contest--perhaps *MQ* might take a more cautious approach.) Has anyone else had experience with permissions to use images/lyrics from non-western locations?

Steve Gilbert: Ted Friedman makes a good point in questioning the difference (see subject line). The answer, as I see it, points its way back to the money. I doubt that Ira Gershwin would have liked Sublime's parody-mass on "Summertime," but it's generated a healthy revenue stream for the incorporated estate. It's interesting that, along with the Gershwin interests, the main mover in getting copyright extended virtually indefinitely is Disney--which I find particularly ironic in that so many of their successful and beloved features use public-domain material for their titles and story lines.

Another observation: During his lifetime, Irving Berlin was notoriously tight-fisted about his material, and almost from the start did his own publishing, and his songs have never, to my knowledge, been included in anthologies. Alec Wilder's book on American Popular song contains no musical examples in the Berlin chapter, with a footnote explaining that permission was flat-out denied. In the wake of Berlin's death in 1988, however, this has opened up, as witness the abundant examples in Allen Forte's Berlin chapter (in _The American Popular Ballad of the Golden Era, 1924-50_).

With more recent music, where the recording is in effect the definitive document and where little is actually written down, I think there are ways around the problem insofar as text is concerned. The only thing is that a book for classroom use virtually demands a companion CD, and that's where things get gnarly. I would imagine that anything that's been anthologised--i.e., oldies--would be a relatively easy matter--especially since signed-away rights were rampant in the '50s. But for the newies that's another matter.

Holly Kruse: Those interested in the work of Coombe and overall in Marxist/critical approaches to copyright law might be interested in looking at the current issue of the _Yale Journal of Law and Humanities_. There are articles in it by both Coombe and Jane Gaines, and their contributions were edited by Mark Fenster, who has a pretty extensive background in Popular music studies (from his pre-law school days)... and I'm not just plugging this journal issue as a bit of household boosterism! Really. Anyway, articles of interest in Volume 10, Number 2 are: Rosemary Coombe ("Critical Cultural Legal Studies"), Jane Gaines, ("The Absurdity of Property in the Person"), Barbara Johnson ("Anthropomorphism in Lyric and Law"), Sally Engle Merry ("Law, Culture, and Cultural Appropriation"). The entire table of contents can be found at the Journal's website at [http://www.yale.edu/yjlh/tocs/v10n2.htm].

Mark Fenster: Rosemary Coombe has a book due this fall from Duke, which should be a more than adequate introduction to her work (there are useful summaries of her stuff in her essay in a brand new collection named _Law in the Domains of Culture_, edited by Austin Sarat and Thomas Kearns, and in a forthcoming issue of the _Yale Journal of Law & the Humanities_). James Boyle's book, recently out in paperback (_Shamans, Software, and Spleens_), covers similar ground, but not as well or as compellingly as Rosemary, imho. Three other works worth looking at, though none is specifically about music, are Jane Gaines's _Contested Culture_, Ron Bettig's _Copyrighting Culture_, and _The Construction of Authorship_ (edited by Peter Jaszi and Martha Woodmansee, including an essay by the list's own David Sanjek, which I assume David would want to update -- and perhaps is in the midst of doing). There's also Simon Frith's fine edited collection called _Music and Copyright_, which was never published in the US, and is neither especially Marxist nor especially theoretical.

As to Marxist theories of IP, the Coombe and Gaines cites will take you where you want to go; Bernard Edelman's Althusserian _Ownership of the Image_ is probably the most-cited, if not the most useful (he's French and so working from a civil, rather than Anglo-American common law perspective; he's talking about photography; the book is written in the stilted style of late-1970s theory. Paul Hirst [himself no stranger to stilted writing styles] has written several introductions to and critiques of the work of Edelman and the Soviet legal theorist Evgeny Pashukanis, who wrote extensively on Western law and commodity fetishism).

One final comment on the Gilbert O'Sullivan case (_Grand Upright v. Warner Bros. Records_): My understanding (from a class taken from a former major label general counsel) is that this lower court decision was not the historical marker that previous posts indicated. In addition to having no value as a legal precedent because it wasn't appealed, the music industry had already been moving in the direction of an administrative licensing scheme handled internally by the labels. Furthermore, it wasn't the labels that were pushing hard for such a scheme, but the *artists*, and especially the more commercially successful artists with the greatest negotiating leverage over labels. _Grand Upright_ was undoubtedly useful for labels in some respects-- though it's a really poorly written and simplistic decision, and potentially problematic for the industry in its implications of vast copyright protections-- but it was neither the first nor last word on the subject. It was an anomaly for not having been settled out of court, as the vast majority of disputes in the entertainment industry are (something that Warner Bros. again forgot quite recently in the Francis Ford Coppola case).

F.Susan Fast: I am trying to obtain permission to quote some lyrics from U2 songs in an essay that I've written for a book on rock music which is forthcoming from Garland. I sent the request to Polygram at the end of January, made phone calls and sent faxes to them regularly asking about the progress of my request until the end of May, at which time some kind soul there told me that these requests go directly to U2 management and that they are rather slow in dealing with them. I've now been phoning and faxing the woman at Principle Management who handles permissions requests for two months; she's been saying that an answer is forthcoming "in the next week," "very soon," etc. for that amount of time. According to her, these permissions require "artist approval, and they are extremely busy at the moment." Right. Any ideas?

Robert Walser: On Susan's question: Not getting an answer can be the best possible response, depending on your publisher. In my experience, most are willing to accept a "good faith" effort to obtain permission as sufficient; several letters and phone calls over the course of several months, with no usable response, would count. It's good to keep evidence of your attempts; one publisher suggested that the final attempt be made through registered mail. The bands to which I referred in my earlier posting were Iron Maiden and Guns 'N Roses; their representatives never answered my letters so I quoted their lyrics liberally. My publisher accepted my efforts as sufficient and nothing more ever came of it.

Journal editors and staff may be stickier, probably because they often know less about the big-time publishing world. But that can create openings, too. When someone at _Popular Music and Society_ balked at the Prince album cover I wanted to reproduce in my article (and for which I had not requested permission from anyone), I sent an explanation of the concept of Fair Use and my emphatic assertion of my right to include an image which upon which I commented analytically, which was direct evidence for a main argument of the article, and for which no economic harm to the copyright holder could reasonably be imagined. They believed me and printed it.

It's still the Wild West out there. It's important to emphasise that while we might critique artists or the industry, we're not competing economically with them: no one is going to buy my book on heavy metal as a way to save money on metal CDs. In fact, our work often stimulates sales, albeit on too small a scale to register. To me, the most powerful argument we can make combines the fundamental importance of free speech with the fact that no demonstrable economic harm to copyright holders can come of most academic work. These points are fundamental parts of the Fair Use laws already in place in the U.S.

Michael Morse: Don't the various rights holders see "use without economic gain" as de facto "demonstrable economic harm"? The argument would be, roughly: if you want to use my/our material without (much) gain for yourself, knock yourself out--but *any* use of my/our property must be recompensed at a standard rate set by me/us. I'm trying here to make some sense of the absolutely dadaistic figures that were quoted to you (and others) for permission. The numbers are wacko in the context of academic use, but make a grim sense from the smoke-filled offices of a Heavy Metal song publisher's office. If this analysis is correct, then the free speech arguments you're making here--again, they're totally convincing and sound to me--are little likely to become the basis for headway with the practical problems (e.g. of creating a policy statement for Popular music scholars). Once the principle is in place that speech interests can be trumped by economic interests, the only way to win a rational (in our sense) policy is through economic argument. Yes?

F.Susan Fast: I asked U2's management for a couple of photographs to accompany my essay, these being critical to my arguments. I received a fax asking me for a copy of the article and then, a couple of months later (again after repeated calls and faxes from me) a terse refusal. When I inquired why my request had been refused, the answer was that they only provided photographs for official U2 publications and "school textbooks", clearly not understanding that the book in which my essay will appear falls, more or less, under the latter category. I'm still trying to hammer that out with them too, but in terms of photographs (unless it's an album cover), the easiest solution in terms of copyright might be to make the request to internet discussion groups for the artist in question. For my book on Led Zeppelin, I've made at least two connections for photographs this way: both have enormous photo collections (one is a photographer by profession, who took lots of pictures of Zep in concert in the 70's) and are willing to let me use their pictures for what amounts to a small honorarium. They're a lot nicer to deal with than publishers, too!

Anahid Kassabian: I know I sort of floated the idea of a statement, but now I wonder--should it be an intl. project or chapter by chapter? I could make a case either way, but I think we should at least ask the question and toss it around some.

Serge Lacasse: I think chapter by chapter at first sounds a good idea, since laws are different from country to country.

Geoffrey P.Hull: A statement from IASPM could be internationally based, but since copyright laws do not have effect outside of their native countries and since the laws regarding what might be considered as fair use do vary somewhat, we would ultimately have to come out with some chapter-based statements. We might want to see if there could be some interest from WIPO (World Intellectual Property Organisation) in this. They have recently promulgated two treaties concerning copyright and are working on some kind of proposal over the protection of "cultural" works such as folk tales and art.

Jon Caramancia: As a writer myself, I have never once been asked by an editor to exclude lyrics from a piece of mine in a magazine. In fact, oftentimes it strengthens an article, much as they do in academic work. If anything, it is the magazines who make a greater profit off of lyric use than the scholars do. In an earlier email exchange with Dave Sanjek, I had recommended that perhaps both of these groups had common interests that they might want to protect, and might benefit from a fair use bill of rights collaborated on as a group Then again, we might want to isolate the concerns of the academics as a different beast. Either way, I feel very strongly that we have an imperative as a body of some standing to codify much of what has been said on this discussion thread. It has become clear that we are largely of the same mindset, and no one wants these things to encroach upon their academic work. Perhaps a committee should form at one of the upcoming IASPM conferences:

Peter Winkler: At the Montreal conference of IASPM back in 1985s, Charles Keil delivered the conference summary and wrap-up. I remember along the way he suggested that all copyrights should be abolished, and justified that with two or three trenchant, quintessentially Keilian sentences. His remarks were later printed in RPM #9: here's the relevant section (RPM 9 p. 12)

"Utopia Time"
"Who would like to perpetuate the myth of music as property? Who likes song as commodity? Who believes in recordings for the profit of the few at the expense of the many? "Who would like to liberate music from the bonds of capitalism once and for all? No more hype. No more p[romo. No more violent million-dollar videos. "I really believe IASPM should help the cassette revolution along and lobby for the elimination of music copyright in all countries."

I don't know if Keil has expounded these views more fully elsewhere in print; his point of view is certainly radical (he calls his politics "eco-libertarian") but I'd bet he's thought it through.

Michael Morse: I certainly hope so. What is "eco-libertarian," not to mention "utopian," about destroying the system of livelihood of composers? Last time I looked, _Urban Blues_ was for sale.

Geoffrey P.Hull: Actually, one would be in a somewhat less defensible position with excerpts from unpublished acts. In the U.S., the second fair use factor "the nature of the copyrighted work" is generally thought to mean that it is less fair to quote from unpublished works since the author has not had any opportunity to commercially exploit the work and should be able to be the first to "put it into print." Thus, the old moniker of common law copyright as the "right of first publication." The U.S. Supreme Court ruled in Harper and Row v. Nation Enterprises, 471 U.S. 539 (1985), that "the scope of fair use is narrower with respect to unpublished works."

Following that case, there was an overzealous application of the decision by the Second Circuit and a resulting hue and cry from academia that the decision meant that no unpublished work could be used. Of course, the Supreme Court did not say that, but the academics and the Second Circuit Court of Appeals were convinced that the sky had fallen. So Congress passed an amendment to the fair use provision in 1992 stating, "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." This is fun. The last time there was such a lively discussion was on the subject of a canon for Popular music.

Remember, that the same copyright law that bedevils us academics when we want to use someone else's work is that which makes it possible for our publishers to make any money at all with our works. In fact, were it not for copyright law, there would not be much Popular music industry or Popular music for us to study.

Robert Walser: Nice posting, otherwise, but: "were it not for copyright law, there would not be much Popular music industry or Popular music for us to study." Yikes! We might be paying more attention to polka bands and less to Madonna, but there'd be plenty of music around. And many (though not all) of the issues would be the same.

Neal Ullestad: I too feel that Popular music would be with us, and of us, without the "industry" and the copyright "business" it supports, but speculating about not having copyright when it IS with us keeps us from the things we can actually effect, like working on a "fair use" bill of rights as others have mentioned or making sure that the song writers and their families actually benefit from the songs they wrote, i.e.: an old age home for musicians who's copyrights got bought cheap or stolen (oh dear me, dare I mention that the "industry" doesn't give a flying f** about anything but bottom line profit, not about the artists or about academics or about audiences, and that if things are going to change someone has to actively force their hand). Specific individuals not withstanding, there must be some middle ground between Keil's "utopia" and the existing situation that IASPM branches can take a stand on and work toward outlining fairness up and down the ladder of writing and composing and analysing that needn't be focussed on the bottom line of profit. Perhaps there is a more formal process in Europe too, legally, not just the informal and "easy-going" one described here regarding Finland and others, that lends itself to the "looser" rules on citation. Count me in to help in any way I can to develop, distribute and support a "bill of rights".

Rob Bowman: As I understand it the difference extends back to the 1909 Copyright Law. At that time Congress was attempting to prevent the Aeolian Player Piano company from having a virtual monopoly on "all the Popular music of the day" (read Tin Pan Alley). Aeolian had made deals with virtually all the most important New York publishing houses where for "x" dollars Aeolian had exclusive rights to player piano rolls of that publishing houses's songs. The new Copyright Law specifically provided the right for ANYONE to "cover" any song as long as they filed notice and paid what was then 2 cents per unit per song (providing they didn't satirise or caricature the song and therefore reduce its copyright value--hence Led Zeppelin successfully repressing "Stairway to Gilligan's Island"). Congress, of course, in 1909 could not have envisioned sampling pre-existent performances and therefore didn't address the "copying" of performances. Hence, the large difference in mechanical rights and publishing rights vis a vis sampling vs. covering.

Geoffrey P.Hull: Mechanical rights, the right to reproduce an non-dramatic musical work in the form of a recording, are handled differently from other publishing rights. Prior to 1909 the U.S. Supreme Court had ruled that a piano roll recording, hence any other type of recording, was not a copy of a musical composition and could be done without permission. The music publishers complained mightily. At the same time, the Aeolian company had moved to get exclusive piano roll reproduction licenses form just about all the music publishers. In order to prevent a monopoly and to ease the record and piano roll publishers minds regarding this "new right" for music publishers, the compulsory mechanical license was created. So, once the owner has allowed the first public release of a recording, anyone else may make such a use if they comply with the statutory license provisions. OR, they can get a negotiated license from the music publisher, which is what about 99 percent of the mechanical licenses are (i.e. negotiated). ASCAP and BMI do not grant mechanical licenses. They can only grant non-exclusive licenses for public performance. Most mechanical licenses end up being handled in the U.S. through the Harry Fox Agency, a licensing arm of the National Music Publishers' Association.

Toru Seyama: Discussion on copyright is really interesting and informative! But I wonder how the situations in Asian countries are. Does anyone kindly give us information about it?

FYI: The Japan branch, together with the JASPM, held a symposium on this issue nearly nine years ago, and it was published as one of the _JASPM Working Paper Series_ : 1990 _Copyright and Popular Music: A Symposium. (Held at the First Annual Conference of the JASPM with IASPM-Japan at Tokyo Geijutsu Daigaku, 5 November, 1989). Panellists: Kawabata, Shigeru (Music critic); Yamashita, Kunio (Director, Copyright Department, Japan Phonograph Record Association); Ishijima, Minoru (Director, International Music Department, BMG Victor-Japan); Shinozaki, Hiroshi (Reporter, Cultural Department, Asahi Shimbun Publishing Co., Tokyo). Chairman: Mitsui, Toru (Professor, Kanazawa University). [in Japanese]. Tokyo: JASPM. If you are interested in the above publication and so on, please contact: Harumichi YAMADA, DSc, [yamada@tku.ac.jp], [http://camp.ff.tku.ac.jp].

Ian Inglis: I'm overwhelmed by the number of responses and subsequent contributions to the debate following my request for advice over copyright. I may not yet have the definitive solution to the problems raised, but I have more than enough answers to sustain me in negotiations!

My request for advice stems from a book I've edited for MacMillan (in the UK) and St Martins Press (in the US) "The Beatles, Popular Music And Society", to be published next Spring. Some of the papers include numerous musical/lyrical quotations; others include none. I elected to seek copyright permission for all the relevant contributions, rather than leaving it to each individual to sort out his/her own details. I still think this was the proper decision. Most publishers I approached were very helpful; some gave permission freely, some made a token charge (stlg35-stlg40). Only ABKCO (to date) have been awkward; when I appealed to them they indicated they would be prepared to charge a lower fee, as long as it was commensurate with the highest fee charged by any other publisher. This is a problem I've encountered before; their fear of being ripped off is fuelled not so much by what they charge me, but by what their competitors charge me! It seems that if you have the time and energy and confidence to play them off against each other, you might eventually come out with a good deal - but the point is that it shouldn't have to be done that way. A lot clearly depends on the academic publisher; in my case, MacMillan was insistent that I should apply for permission for even the briefest quotation. It seems strange that the publishers themselves should have no guidelines (or that their legal departments have not addressed the problem thoroughly; I can't believe that I'm the first author for MacMillan who's had this problem). Numerous people have suggested some sort of voluntary code or guidelines...if I can help, count me in. I guess at the very least, it would have to include ASCAP, BMI, the Performing Rights Society, IASPM, and representatives of publishers in the UK and US (and elsewhere).

Incidentally, Popular music isn't alone in the copyright arguments. Disney have the reputation of ruthlessly tracking down unauthorised uses of its names or symbols around the world. In the UK the National Lottery (slogan "It Could Be You") successfully sued the manufacturers of a T-shirt which showed its logo atop the slogan "I've Won Fuck All". And recently soccer stars in the UK have copyrighted their names and/or nicknames - Eric Cantona, Paul Gascoigne/Gazza and Alan Shearer now require authorisation before thy can be reproduced. One soccer club - Newcastle United - have even tried to copyright the phrase Toon Army (Town Army) used to describe its fans; happily they failed when it was ruled that the words town and army are in common circulation and should remain soap.

Geoffrey P.Hull: I've seen several references in the copyright discussion (and often hear them in the media) to "copyrighting" an name or mark. Usually that would be a trademark or service mark. Copyright does not protect a name, per se. Only trademark law or the law of privacy/publicity would protect a person's professional name from unauthorised use.

Steve Gilbert: To corroborate Geoffrey Hull, yes indeed, the Gershwin name and (thus far) the _Porgy and Bess_ title are trademarked, not copyrighted.

Reebee Garofalo: One of those WIPO proposals includes the creation of a new property right for electronic databases. If you think academics are having trouble getting permissions under current conceptions of copyright, just wait until you can't quote the chart position of a record or the baseball scores without permission. We need to get a bit more ahead of the wave on this stuff.

Last time updated on 19-February-1999 • © Heinz-Peter Katlewski

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