Copyright (AGAIN, sorry!)

[Dave & Laura McKinstry]

We've gone over this subject from several different directions, and I 
hate to be repetitive, but I still have unanswered questions regarding 
exactly WHAT is covered by a songwriter's "copyright" which is inherent 
in the songwriter's first recording, in any medium, of any given song.

My understanding of copyright, in regards to music:

Ancient melodies and words are beyond copyright due to time limitations 
of copyrights.  However, a modern arrangement of the song is under the 
arranger's copyright, and therefor, I can't take, for example, John 
Smith's arrangement of "Ash Grove" and print it in my own book, even if 
I attribute it to him.

In "How to Pitch and Promote Your Songs", by Fred Koller, he states, 
"You... have a brand new song...  It may be written on a bag from the 
grocery store or on fine manuscript paper, but essentially, what you 
have created is a copyright song that is the product of your mind.  It's 
sometimes referred to as an 'intellectual property.'  You own the melody 
and the words, or, if you collaborated, at least a percentage of these 
parts of the song.  When someone performs your song, or your song is 
recorded and sold as a record or printed and sold as sheet music, you, 
the copyright holder, have the right to collect income."  Koller further 
explains that this income typically comes as a percentage share of the 
song's royalties.  So what if some use of your song is done as a 
non-profit distribution?  Koller compares the song also to an artist's 
painting, which the artist can sell, and the person that artist sells 
the painting to can then make reprints of the painting.  What if another 
artist sees the painting and paints an impression of it, then puts 
his/her own name on the facsimile?  Are they treading on copyright, and 
how does this differ from fakebooks, if at all?

An issue that is often cited is whether a person is copying (either at a 
copy machine or orally in performance) for self or for profit.  It is my 
understanding that taking a piece of sheet music to a copy machine and 
making an exact duplicate is illegal for any reason whatsoever, because 
it is the actual typesetting of the work that the publisher has a 
copyright to, beyond the song itself.  If this were not the case, 
publishers would never be able to sell anything that one could find in a 
library or borrow from a friend.  This is equivalent to borrowing a CD 
from someone, making a copy of it on a tape, then giving back the CD.  
My understanding is that this is illegal for tapes, CDs, sheet music, or 
any other media.

With this in mind, a) How do "Fakebooks" get away with it -- what's 
their loophole, and b) how do local rock groups get away with playing 
"cover" songs at paid gigs?

The only right I can see that a songwriter truly has is the right to 
print the specific arrangament, and to record, or to control the 
recording of, their own music.  Even cover bands don't have the right to 
make recordings of other people's songs, while those songs are still 
under copyright (which, last I checked, lasts 50 years.)  The songwriter 
also has, of course, the right to sell this right, and songwriters are 
able to do so repeatedly for the same song, if they wish.

And how does this affect our distribution of our own music?  Does 
someone have a right to make "fakebooks" that have our songs in them?  
Obviously, if we sing our song at a campfire, and someone is able to 
remember it perfectly, that person can go to the next campfire, sit 
down, and sing the song to others.  To my knowledge, this is not a 
breach of copyright; it is where ethics become involved.  The RIGHT 
thing to do is to let the people at the second campfire know who it was 
that wrote the song.  Which is why, when we sing our songs, or when we 
sing other people's songs, it's important that we announce the name of 
the song and where it came from, so that credit is given to the 
appropriate person.  After all, bardic circles are NOT concerts which 
come with programs - we have to take care of ourselves, and of each 
other.

To my knwledge, also, if someone asks me what it is that Mick Jagger is 
singing in "Jumping Jack Flash" I'm not breaching any copyright by 
writing down the lyrics for them.  Or am I?  Is this different from 
posting the lyrics on my web page?  Doesn't Mick OWN those lyrics?  To 
what extent do I have the right to record them for a) a friend or b) the 
world in general?

And a little on-subject anecdote to lighten up the mood:

I went to one of George Winston's concerts once.  He came out on stage 
and apologized for wearing socks on stage - he said he normally went 
barefoot, but Spokane was too cold for that.  Later in the concert, GW 
talked about problems he'd been having with the publisher he'd sold his 
sheet music rights to.  The publisher held ALL rights, but refused to 
publish.  People keep asking GW where they could get copies of his songs 
so they could learn to play them, and GW finally went to his lawyer and 
said "What rights DO I have?" and his lawyer answered, "None, George, 
you sold them all."  He considered this for a moment, then said, "Okay, 
I can't publish, and I can't make THEM publish.  Can't I at least make a 
few copies for my friends?" and his lawyer answered "Sure, Goeorge!  You 
can do that!"  At this point in the story, GW got up from his piano, 
looked out at the audience and said, "I consider ALL of you my friends, 
which is why I made 3,000 copies of 'Moon' and 'Linus and Lucy'.  
They're sitting on tables outside the concert hall so you can pick up a 
copy on your way out."

That's how I got a copy of these two hitherto (and to my knowledge, 
STILL) unpublished songs.