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Copyright and Fair Use: Music & Copyright

Copyright Basics & Public Domain

What is Copyright?

Copyright is legal protection afforded to the creator or owner of a given work. That protection allows the copyright holder to publish, perform, film, or create derivative works based upon the original, as well as the right to authorize or decline authorization to others who wish to publish, perform, film, or create derivative works based upon the original.               

What is this whole Public Domain thing? 

The public domain is a body of resources that are in Public Ownership; either the copyright protection has expired, or it has been made available freely to use without licensing or permission with little or no restrictions from the creator or copyright holder of that work.

This includes: 

  • Public Domain = works that were previously protected by copyright, for which the allowable period of protection has expired. 
  • Creative Commons = recent works that were eligible for copyright, but which were instead published under a license that allows free use, with limited or no restrictions. 
  • Open Source = refers to technology, or software, for which the source code was made freely available for use and modification without permission. 

If it's in the public domain, that means I don't have to cite the source, right?

  • Wrong! It is still your responsibility to attribute the intellectual property which influenced your work, regardless of whether or not that work is in public ownership, or copy protected.

If a piece - say Beethoven's 9th Symphony - is in the public domain, that means I don't have to worry about the edition, right?

  • Wrong! A new edition would be transformative, and the intellectual property of the editor. New editions are, therefore copyright protected.  So, a new edition of Beethoven's 9th Symphony would be copyright protected. In order to be part of the public domain, both the edition and the original work must be in public ownership. 
  • *Generally, works published prior to 1923, or works whose creators and/or editors have been dead for 75 years are safely in the public domain.


Fair Use

I'm a student - can't I do anything under fair use?

Basically. . . . no. There are limitations to fair use, and you need to be aware of them. Use these 4 factors to determine if you are covered under fair use:

1. How do you intend to use the work - for profit, or educational / not-for-profit? Is the intended use transformative - are you creating a new idea, insight, expression or understanding. . . or just copying verbatim? 

2. What is the nature of the work? (In a music setting, you will normally be working with creative works that have been published.)

3. What is the portion taken; how substantive is that portion; and what is the relative degree of harm to the copyright holder?

4. What is the effect of the intended use upon the potential market value?

So, what CAN I do under fair use? 

These are always subject to the factors above, but some of the most common approved fair use exemptions (uses that do not require special licensing or permission from the copyright holder) are: 

  • Criticism & Commentary
  • Parody
  • Journalism 
  • Art (Transformative)
  • Scholarship & Research 



Musician's Fair Use Guide

   In a nutshell, here is fair use for musicians:

NO: Fair use protections do not apply to resources created for consumption including musical excercises, workbooks, study guides, etc.

YES: Fair use protections do allow for reproduction (scan, xerox) of up to 10% of the entire paginated work for the purpose of criticism, analysis, study, etc.

NO: It is never allowable to under fair use to reproduce an entire performable unit (aria, movement, concerto, song, etc.)

YES: For any work that is in the public domain, it is permissible to reproduce, record, film, perform, create derivative works, etc. If the work is creative commons, you'll have to refer to the specific terms of the creator on a case-by-case basis.