Re: learning CD copyright question
> The analogy with graphic design is fatally flawed.Well....I didn't mean to go that deeply with it, but let's use your
> Here's what happens if you apply the learning CD facts to graphicOK - this is a terrific example. But you've twisted the situation -
> design: If you were to use an existing trademark (like an existing
> song) in a design that you sold for profit to someone other than the
> trademark holder (like the chorus or quartet purchasing the learning
> CDs), you would need to pay a fee to the trademark holder (like the
> copyright holder of the underlying song). For example, if you created
> and sold a design with a Jayhawk on it, you'd have to pay a fee to
> Kansas University.
again. To fix YOUR analogy, it would be that I am a graphic designer
_hired by a company that wants to use a sports logo_ (let's say utting
it in a unique design on a beer koozie).
I create the graphics for this company.....but I am not the one
required to acquire the rights from the sports team....it is the
company that hired me that is responsible.
> Once again, I appreciate everyone trying to answer this question, butI believe Kenny's answer was correct - the owners of the copyright
> we really need to hear from a lawyer who is an expert in mechanical
simply need to be paid...it doesn't really matter to them from whom.
This kind of thing is generally not specified in law, is it? It is
tested in actual court cases - precedents - isn't it? (I am not a
lawyer.) Unless a copyright owner has sued in the case of a learning
track situation and determined who is responsible for the fees, isn't
this all academic?
I'm pretty sure that my graphic design analogy is correct.
You seem really determined to place the burden on the learning CD
creator....almost as if you had a personal stake in the outcome.
Well...that sounds accusatory, and I don't mean it in that way. But I
do wonder why you are trying so hard to push this burden in that
> Here's one more thing to add to the confusion that I haven't seen,I think my extended graphic design analogy works here as well,
> yet. Most (all?) learning track manufacturers/providers sell an
> already completed track off a list of previously-done works. That
> seems to eliminate the "chorus is the producer" element.
actually. I create a design for a company using that team logo. The
company pays the fee to the team for use of the logo and makes their
However, the company does not require that I keep that design
exclusive. I find another company that wants to use it for
t-shirts....again, they are the ones required to pay the fee to the
copyright owner, not me.
I realize I'm looking at that design as if it were a derivative
work...which it would be. But I think that's a fair analogy, as the
group that creates a recording of a song has certain rights to that
particular recording - almost as if it were a derivative work. In
essence, that's what a learning track creator is doing.
But again...isn't this all academic unless and until this is tested in
court? Kind of like tags as being educational fair-use. :)
- Martin, et al.,
Your analogy still appears incongruous, but since I'm not an expert in
this specific area, I'm just hypothesizing, and that's not going to
convince you on the issue.
Kenny is right that it doesn't matter who pays if someone pays at the
proper time. But what about the situation where nobody pays? If you
are the chorus and the learning CD maker doesn't pay, you'd better
pay. And if you're the learning CD maker and the chorus doesn't pay,
you'd better pay. As I said before, if the copyright holder sues in a
case where nobody pays, it doesn't matter whether you'd win in the end
-- just having the fight makes you lose, due to the cost of litigation
or even mediation.
There are four reasons I seem to be determined to place the burden on
the learning CD creator:
First and foremost, that's what I think the law is. No one has yet
given me a sound legal argument for why I'm wrong, and it still looks
to me like I'm going along with what the law says.
Second, I've been looking at this from the perspective of the learning
CD maker. As I stated above, if I were the user of a learning CD and
the creator of the recording didn't pay, I would need to pay to avoid
any liability -- I don't think the user could be held liable, but he'd
probably be sued along with the creator.
Third, I don't want these guys to get in trouble. It would be a
tragedy if one of these guys, like Tim Waurick, got sued and lost all
the money he had made from his business (and perhaps even more).
Fourth, I'm preparing to launch my own learning CD business, and this
is one aspect that really concerns me. I'm trying to pattern myself
after other successful learning CD makers, and they don't pay these
fees. Also, I'm thinking of using this issue to set my business apart
-- no matter what the law says, I'm sure there are quartets and
choruses that would appreciate having the learning CD singer pay those
fees, so it is a service I could provide that the other guys aren't
One member of the list pointed me toward a copyright attorney who may
be able to give me a free bit of advice by e-mail. If he does give me
his opinion, I'll report back.
Thanks again to everyone for helping me to understand this. I may
disagree with a lot of what has been argued, but the discussion itself
has helped me to better understand the issues involved.
Kansas Men in Harmony Director
Air Capital Chorus Lead
> There are four reasons I seem to be determined toIt's an interesting idea, but it sounds kind of risky. It seems that
> place the burden on the learning CD creator:
> I'm preparing to launch my own learning CD business, and this
> is one aspect that really concerns me. I'm trying to pattern myself
> after other successful learning CD makers, and they don't pay these
> fees. Also, I'm thinking of using this issue to set my business
> apart -- no matter what the law says, I'm sure there are quartets
> and choruses that would appreciate having the learning CD singer
> pay those fees, so it is a service I could provide that the other
> guys aren't providing.
by approaching it in this way, you would in essence be claiming
responsibility for legal issues in regards to the tracks in the
chorus's possession. Rather than leaving it open to speculation, you
would deliberately be saying that you are assuming that legal
Another thing....it kind of seems like a convenient fiction. You
might be taking care of the paperwork and paying the legal fees, but
you'll still be using your customer's money to do it - one way or the
other, the funds will be coming from them.
In that case, it seems like it might be less risky all around if you
do what you can to let the responsibility rest on your customers
rather than taking it upon yourself - they are the ones making and
using the copies after all, not you. You are simply producing a single
master....you could pay for fees on that if you feel that is your
And if you want to add a unique service, it seems like it might be
best to actually call it that....a service. You could take care of the
paperwork for your customers, billing them only for the number of
copies they require. By labeling what you do as a service, you are not
assuming additional responsibility. It just seems dangerous to
deliberately claim more legal responsibility when it's not necessary.
Anyway....as you said, this is all just opinion. I kind of sound like
I'm telling you what to do, but I don't mean it in that way. Just kind
of speculating. Doing what's right is important....but assuming
responsibility for the potential actions of others just seems like a
- --- In firstname.lastname@example.org, "Martin Grandahl" <martingrandahl@...>
>> Another thing....it kind of seems like a convenient fiction. YouIt may be a relevant parallel to look at what our arrangers do.
> might be taking care of the paperwork and paying the legal fees, but
> you'll still be using your customer's money to do it - one way or the
> other, the funds will be coming from them.
With the exception of Public Domain songs, almost all arrangers will
sell you 4 copies that include the per copy fee and then it is up to
the chorus to pay for the remaining copies. So they are still using
the group's money, but paying the per copy fee per the agreement
established in most permissions to arrange.
If nothing else, I would think that showing the good faith effort to
enforce the per copy fees as much as you reasonably can would alleviate
your liability rather than strengthen it. In one case, you can at
least claim "They wanted 4 and I made sure you were paid for the 4. I
can't control what they do beyond that." In a case where you did
nothing, it is less convincing to say, "Hey! I didn't know they were
using my copy or making any more!"
I would find the relationship between arranger/chorus and
arrager/publisher to be very similar to that of track-maker/chorus and