If you are a music therapist, you likely have a pretty sizeable collection of music on your iPod or stacks of CDs strewn around your home. You probably also have a good number of popular songs in your memory bank, ready to play and sing for music therapy sessions. You also probably know that much, if not virtually all, of this musical material is protected by copyright. How can music therapists ethically use copyrighted material in their professional work?
This is the third in a three-part series on copyright issues for music therapists. In part one of this series, we looked at the basic purpose of and qualifications for copyright protection. In part two, we discussed potential implications of copyright law for music therapists as creators of materials that may be protected by copyright. In this post, we will examine the issues of copyright infringement and fair use as they relate to music therapy.
The three posts in this series are my summaries of and reflections on a presentation by Donald R. Simon, J.D./LL.M, of the Kansas City Volunteer Lawyers and Accountants for the Arts. I am not a lawyer, however, so as what I have written sparks questions relating to copyright issues in your own agency or practice, I encourage you to do further research on the U.S. Copyright office website or contact a lawyer near you.
What is infringement?
If you recall from part one of this series, copyright law gives the creator of original material a bundle of exclusive rights, including the rights to reproduce the work and distribute copies, to prepare derivative works or arrangements, and to perform or display the work publicly. Copyright infringement occurs when one or more of these exclusive rights of ownership is violated.
When infringement occurs, the onus is on the copyright holder to enforce the copyright by suing the party who is supposed to have violated the copyright. They may sue for actual damages – equal to the amount owner lost as a result of the infringement – or for statutory damages, which are awarded when the owner’s actual loss, or the infringer’s profits, are hard to determine. Statutory damages range from $500 to $100,000 per work infringed. Clearly, music therapists are going to want to avoid this kind of problem.
Once we start looking at how we use music, though, it starts to seem that everything could constitute infringement. Singing “Bridge Over Troubled Water” in a session? Writing new lyrics to the melody of “Yesterday?” Passing out lyric sheets to a group? Providing a hospital patient with CDs to aid middle-of-the-night pain relief? Respectively, these could be considered infringements of the rights to perform publicly, create derivative works, and distribute copies. What is a music therapist to do? To use copyrighted material in a manner that does not constitute infringement, the music therapist must either use the material in a manner that falls under the fair use doctrine or secure licensing rights from the copyright holder.
What is fair use?
Fair use is a significant, but very narrow, exception to the monopoly of copyright protection. It gives people other than the copyright owner a limited privilege of using copyrighted work without the owner’s consent and without paying a royalty. Fair use is intended to serve some productive, publicly beneficial purpose, such as criticism, parody, teaching, or research. Great! Surely music therapy falls under this “publicly beneficial” category, right? We just want to use music to help people, not sell pirated CDs on the street. Unfortunately for us, music therapy is not directly addressed in copyright law, and whether our use of copyrighted material in music therapy work constitutes fair use or infringement must be determined on a case-by-case basis in court.
Courts determining fair use consider four main factors:
- Purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes
- Does the use serve some productive, publicly beneficial purpose, such as news reporting or teaching? (Does therapy for people with significant physical, emotional, cognitive, or spiritual needs count?)
- Is the use solely for entertainment purposes? (Is using music in therapy different than music for entertainment? Music therapists would likely argue that it is very different.)
- Is the character of the use predominantly commercial? (Are you using this music to make money? Maybe, if you’re a professional music therapist.)
- Effect of the use upon the potential market for or value of the copyrighted work
- Has the use significantly usurped a portion of the market for the copyright? (Does using copyrighted music in music therapy discourage people from buying CDs themselves?)
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole
- Consider the quantity vs. quality of the portion used.
- The smaller the amount used, the more likely it will be a fair use, but even if small percentages were taken, it may weigh against fair use if the copied portions were clearly the most important or most marketable elements of the copyrighted work.
- Nature of the copyrighted work
- Prior to the unconsented use, was the copyrighted work published or unpublished? Not-yet-published works are considered deserving of greater protection.
- Is the work out-of-print and no longer available? If so, copying is more likely to be fair use. (This might apply particularly to out-of-print songbooks.)
Myths about fair use
Since fair use is determined on a case-by-case basis in court rather than being clearly defined by statute, several common myths about fair use have cropped up. Here are a few:
“I can use copyrighted music so long as it comes within the “8-bar” rule.” – MYTH
Some people think they can use a small portion of a copyrighted work without obtaining a license. They claim, “I can use X number of bars for free,” or, perhaps by extension, “I’m only using the melody, not the lyrics,” or, “I’m only using the hook.” This is not a privilege defined by copyright law, so you would have to defend your use in court.
“It’s okay since it’s free advertisement for the copyright owner.” – MYTH
It may seem that you’re actually doing the copyright owner a favor by using their songs in music therapy sessions or playing recordings in your workplace, but one of the exclusive rights afforded a copyright owner is the right to control how their music is distributed. They could argue that they did not want their music to be distributed at all, and again, this means you have to defend your use in court.
“I can use copyrighted music in an ad for a school or church without first obtaining a license.” – MYTH
It makes no difference whether the organization is non-profit, educational, or a charity – if any copyrighted music is going to be used, it must be specifically licensed for that purpose. Churches, schools, and non-profit organizations all have to obtain appropriate licenses to use copyrighted material in particular ways. Hospitals, nursing homes, and other treatment facilities may need licenses, too.
What about public vs. private performances?
This actually may be the one distinction that would allow music therapists to play copyrighted music in their sessions without infringing copyright. Recall that copyright protects the copyright owner’s exclusive control over public performance or display of their works. Use of material in a private setting is not a violation of copyright law. What is the difference between a public and private performance? A public performance happens in a place open to the public or at any place where a substantial number of persons outside a normal family circle and its immediate social acquaintances is gathered. There is no reasonable expectation of privacy there. On the other hand, a performance limited to members of a family and invited guests is not a public performance. By extension, a hospital or nursing home room is supposed to be private, so one-on-one patient care within such a facility does not constitute a “public performance.” Group patient care held in a private area does not constitute a public gathering either for the purposes of copyright. Again, there is not established law allowing for the use of copyrighted material in private music therapy sessions, so this argument can only be made in the courtroom. Still, this does seem to be one solid argument allowing for the use of copyrighted material in music therapy.
What about licensing?
Of course, obtaining a proper license for music material is the best way of ensuring that the rights of the copyright holder are maintained. Licensing involves obtaining permission to use music for a particular purpose and may involve two separate copyrights: the right to the composition (notes and lyrics), which is often held by the songwriter or a music publishing company; and the right to the sound recording, which is typically held by the recording company or the artist himself, if he/she is unsigned.
The tricky part is that since copyright is one form of intellectual property, these rights can be transferred or sold. This means the original author of copyrighted material is not necessarily the owner of the copyright, and it can take significant time and effort to track down the person or company who owns the rights to the material you wish to use. If you are using lots of songs, this can be a nearly impossible task. This is where performing rights societies enter the picture. These groups, including BMI, ASCAP and SESAC, grant blanket licenses to radio and TV stations, restaurants, retail stores, and other public venues to have public performances of any song from their repertoire. They then collect and distribute royalties to songwriters and publishing companies. It is considered the responsibility of the venue to acquire the license(s). These organizations do grant licenses to places where music therapists might be working, including hospitals, clinics, care centers, and other healthcare facilities, so you may check with your facility’s administration to ensure that proper licensing is in place for public performance of copyrighted music in your workplace.
Performing rights societies only deal with licensing public performances of music. If you want to license copyrighted music for another purpose, such as creating an arrangement of a popular song or putting together a compilation of relaxation music, other organizations may be able to help you obtain a proper license.
Do I have any other options?
Well, if you are going to use music that is protected by copyright, you must use it in the ways described above: private performance, fair use, or licensed use. Copyright protection does expire eventually, so some music is in the public domain. The Library of Congress, BMI, and ASCAP all have databases of songs and songwriters that can help you to determine what is in the public domain. Do keep in mind that music published since 1978 is protected under copyright at least for the lifetime of the creator plus seventy years, up to 120 years from the year of creation for works made for hire. Most of the music we would use is protected by copyright.
Some people do give up some of their copyright protections, so you can watch for that. Creative Commons is a nonprofit corporation that helps creators mark their creative work with the freedoms they want to allow, so that others can share and build upon their work. (This is an excellent option to consider if you are creating works that you wish to allow others to use.) At other times, we might see songbooks, recordings, or other published material that state in writing what particular permissions are allowed. For example, Chuck Wild composed and recorded tracks for members of AMTA to download for use with their clients. The copyright notice for these tracks defines how many copies can be made, who may use them and where, and the fact that these tracks may not be sold.
Perhaps as more musicians and composers become aware of the work done by music therapists, more of them will give explicit permission to use their works in clinical settings. Until then, we can all be creating more music on our own and in sessions with clients – no licenses required.