Letter from Tresona

[cixelsyd]

Both Tresona's letters presume that the issue is teachers not paying their fees, not the actual issue which is whether they are obliged to pay those fees.

Can anyone state the legal reason arrangers for non-profit educational institutions are supposed to pay fees?

And by legal reasons I mean either the black letter law in section 110, or specific case law refining it.

I'm not sure there's supposed to be an education copyright market at all. The premise seems to be you have to pay only if your work competes with the entertainment market versions of the piece. Thus, if you charge admission for profit, you must get copyright clearances. But if the admission goes to support the non-profit educational purpose, you don't have to?

Surprised these questions have not been conclusively answered yet.

The existence of a robust sheet music industry serving the scholastic music world for many years suggests that "educational use" is not a valid exemption from the copyright of a music publisher. Since custom arrangement of music is another right specifically mentioned as belonging to the copyright holder, it stands to reason that the marching arts must follow the law as well. Maybe the experts on this thread can provide specific paragraphs from the law and relevant cases to answer your query completely.

LEGAL DISCLAIMER - I am not a lawyer. As such, any opinions or commentaries included in my posts should not be construed as legal advice. If you have a question about your legal rights or responsibilities, or are seeking legal advice, find an attorney who is licensed to practice law in your jurisdiction.

[Stu]

Both Tresona's letters presume that the issue is teachers not paying their fees, not the actual issue which is whether they are obliged to pay those fees.

Can anyone state the legal reason arrangers for non-profit educational institutions are supposed to pay fees?

And by legal reasons I mean either the black letter law in section 110, or specific case law refining it.

I'm not sure there's supposed to be an education copyright market at all. The premise seems to be you have to pay only if your work competes with the entertainment market versions of the piece. Thus, if you charge admission for profit, you must get copyright clearances. But if the admission goes to support the non-profit educational purpose, you don't have to?

This seems to be a culture in which thousands of teachers without lawyers get their advice from opposing counsel, leading to predictable systematic exploitation.

Another way of putting this is, has a non-profit teacher ever been found guilty of arranging music for their students without permission? Or an arranger for hire, even? Both are employed by the school to support the school's educational mission. Both take home a check personally.

Here is a brief (non-legal because I do not claim to be an attorney) explanation; but if you want specifics please look up the subjects of ‘derivative work’ and ‘educational exemption’ within the US Copyright Law.

Derivative Work: Any alteration whatsoever of a Copyrighted work in which the music is still recognizable as the original work, whether the arranger is paid or not, must be done only at the permission of the Copyright holder. There are a few limited exemptions such as a true parody, or within a strict educational only use (see next example).

Educational use exemption: This applies only to a specific classroom situation where just a small portion of a copyrighted piece can be used for strict classroom educational purposes only, and it is limited in scope to just the academic arena. Performances that are designed for public consumption, such as contests where admission is charged and compensation is paid to music arrangers to write derivative works for public performances, do not fall into the category of strict educational situations.

Like I stated earlier, I am not an attorney; so do not take my words as legal advice and please read the actual Copyright law for yourself.

[perc2100]

Educational use exemption: This applies only to a specific classroom situation where just a small portion of a copyrighted piece can be used for strict classroom educational purposes only, and it is limited in scope to just the academic arena. Performances that are designed for public consumption, such as contests where admission is charged and compensation is paid to music arrangers to write derivative works for public performances, do not fall into the category of strict educational situations.

This is EXACTLY what an entertainment law attorney said to me (one who was working FOR me, not litigating against me).

[perc2100]

Perc, you say you've spoken to entertainment lawyers. That's like Russians saying, "Oh, well. Apparently Napoleon is allowed to take Moscow. I spoke to some generals." Were they generals in your army or the enemy army? Key thing.

Lawyers are fiduciary to their clients. They are required to interpret things in their client's best light. Even obvious implications of the law can be twisted absurdly to support the client's case. I'm asking if this is one of those cases. If a copyright holder can stop a concert by objecting to it in writing. Doesn't that seem to imply they didn't have to give their permission in the first place.

Also, Perc, I don't think you're implying that teachers should pay fees the law does not require, for moral reasons alone, are you? Just making sure.

A single case where a non-profit music teacher was found guilty of violating Title 17 for failing to obtain arrangement rights would go a long way toward proving me wrong. That's all I'm asking for. And everything schools do is public knowledge, including the budget.

And it's not like Tresona isn't litigious. They sue when they're in the right, such as in this case where an arranger had allegedly agreed by contract not to resell the arrangement, and did so anyway. Tresona go to court, they prevail (I believe). They're great at that. They are lawyers.

So there should be some cases. At least a test case.

1. I guess in your analogy, I consulted a general on my own side (Russian, if you're going by your strict analogy?). It was an entertainment law attorney I paid as a consultant for legal advice in these matters, meaning he was working for me.

2. Of course I'm not implying that teachers (whom make so little money anyway) should pay ANY un-required fee, though what I am implying is that in this matter it is not necessarily up to a teacher: it would be up to the school/district Administration since the district would be the ones held liable in rights violation case. If I personally thought the fees were not required, my next steps would be:

a) consult an entertainment law attorney to see if my beliefs are supported by case law and/or conventional interpretation of law

b) if that lawyer backed me up, I would then talk to my Boosters, as they would potentially be liable in a lawsuit (and likely less protected than the district)

c) if the Boosters (who pay all fees associated with marching band expenses, from design, instructional coaching, show entrance fees, some transportation, etc) agree

with myself and the entertainment lawyer, I would talk to my principal and tell him what we were planning to do and why we would be breaking with SOP

d) I suspect the school principal would set up a meeting with the Associate Superintendent who handles these types of matters, and they would consult with our district

attorneys and then my principal/Associate Superintendent/district lawyers would then tell me what to do. I suspect that even if I was seemingly 100% in the right, the

district would be far more apt to pay the nominal fees rather than risk a lawsuit that could end with the district owing $100s of thousands in penalty fines.

3. Again, for most non-profit organizations (public schools, DCI, WGI, BOA, etc) the cost of paying royalty fees for the appropriate rights are FAR less than the POTENTIAL penalty fee: like, not even ballpark. I suspect the fees my boosters have paid for rights over the decade+ I've been at my current school are FAR less than ONE year of a potential penalty fee. Is it possible I could refuse the fees, take Tresona to court, prevail in decision after decision (because so much would be at stake it likely WOULD go to SCOTUS if Tresona kept losing), and win one for non-profits who don't want to pay royalty fees? I guess it technically might be. But it's my understanding (again, after consulting professionals who have spent their careers training and working in music publishing & entertainment law) that would be fairly unlikely, and would definitely be very expensive. Skipping the nominal fees aren't worth it, and to be blunt if the fees really were too cost prohibitive for my boosters we would completely re-evaluate what music we do (as we have on some occasions - looked at music, saw how much the rights fees would be, and then either went in another direction or modified plans).

[Jeff Ream]

Taking a suggestion made in this post, I compiled a list of the counter-arguments made here, threw in a few of my own, and sent them to Tresona. I'll post here if/when they reply.

It was a rather harshly-worded email that ended with me saying they can expect me to not only avoid purchasing their products but actively advocate against their business model by supporting self-publishing. I'm curious to see what they say.

I would encourage many people to do the same. The more negative feedback they hear, the better.

the more negative they hear, the more they dig their heels in.

[Jeff Ream]

That was fast! Here is their reply to my email:

While there are still many issues that could be addressed, I think we can safely say that this letter was not specifically aimed at the marching arts.

it had many targets, but you think they're dumb enough to name names in print?

[Jeff Ream]

Both Tresona's letters presume that the issue is teachers not paying their fees, not the actual issue which is whether they are obliged to pay those fees.

Can anyone state the legal reason arrangers for non-profit educational institutions are supposed to pay fees?

And by legal reasons I mean either the black letter law in section 110, or specific case law refining it.

I'm not sure there's supposed to be an education copyright market at all. The premise seems to be you have to pay only if your work competes with the entertainment market versions of the piece. Thus, if you charge admission for profit, you must get copyright clearances. But if the admission goes to support the non-profit educational purpose, you don't have to?

This seems to be a culture in which thousands of teachers without lawyers get their advice from opposing counsel, leading to predictable systematic exploitation.

Another way of putting this is, has a non-profit teacher ever been found guilty of arranging music for their students without permission? Or an arranger for hire, even? Both are employed by the school to support the school's educational mission. Both take home a check personally.

I know a school that got zapped for $25k for performing a piece without permission and selling a cd of it

[Jeff Ream]

If the rights' holders set the price (which they do) then that is out of all of our hands: including Tresona. It sounds as if Tresona is merely a go-between/middle-man and potentially all of this rage is seemingly directed towards the wrong individuals/company

well it's more like Tresona has to get their share, so stuff went up both so Tresona gets paid and the publisher still makes $$

[Jeff Ream]

I guess, then, the real philosophical question is whether or not this practice is a good or bad thing. For band directors/music boosters paying the fees the price up-tick is not good, but neither are the rising costs of arranging/drill writing, facilities (we sometimes get charged by our district to use our own freaking band room!), transportation, etc: meaning, costs of EVERYTHING continue to rise, albeit maybe not at the rates of rights' licensing.

If creators are being paid better, this is a GOOD thing in our broad music industry! It's easy to look at corporations charging more and profiting off of artists' work, but artists still are the ones who sold their work to those companies at some point.

Maybe a better philosophical question is:

Are we doing marching band/drum corps/marching arts correctly? Maybe the old model of how things USED to be done is quickly becoming outdated and new models must be formulated...

this is where the rise of the Key Poulans, Box 6 etc's have come to be so prevelant.....my god in indoor you cant escape Box6, and they're growing in the fall too. These guys design specifically for the activity, tons f original stuff, and it makes the rights issues easier for the bands and circuits.

[Kamarag]

well it's more like Tresona has to get their share, so stuff went up both so Tresona gets paid and the publisher still makes $$

Correct. Like it or not, Tresona is very good at what it does...providing an easy and fast way to secure whatever rights you need in a one-stop-shopping format. They provide a valuable service and should be profitable about it. In my experience with them, they aren't charging much over what it would cost me to secure rights individually for music I need, and it's well worth the charge for the convenience and speed Tresona provides.

If anything, they are providing the same service CopyCat used to, only a heck of a lot faster.

Edited April 21, 2016 by Kamarag