Disclaimer: I am not a lawyer or legal authority. This post provides only a brief, basic overview of copyright laws and exemptions and should not be consulted as an alternative to legal advice.

Why does Copyright Exist?

I learned that copyright was originally created in order to promote creation of new works, not necessarily to financially benefit creators. Current copyright laws have gone beyond this original purpose to don a more financially-motivated purpose, consequently subverting the original purpose. The fact that copyright extends beyond the death of the creator does not benefit the creator; it merely benefits the companies they leave behind and prevent new creators from creating new works based on aspects of the original. Luckily, the “fair use” exemption helps to mitigate the unfair effects of this legal expansion of copyright.

Can I Copy It?

If it was published/created during or before 1923, yes! All works created pre-1924 are considered public domain and are copyright free. (Note, this does not include more recent copyrighted editions of public domain works.)

Fair Use is a powerful, albeit broadly-scoped, exception to U.S. copyright law that can be very useful for educators, students, researchers, and others. The following four factors determine whether or not fair use can apply.

• Purpose/Character – nonprofit or educational purposes can invoke fair use, commercial purposes cannot
• Nature – fair use usually applies to highly factual works, unlike musical works, which are highly creative in nature
• Amount – it is easier to apply fair use to smaller portions of an overall larger work; note that the law does not define specific sizes/amounts, so tread carefully with this consideration
• Effect on the market – in other words, does copying the music substitute from purchasing an original copy? For example, it may be acceptable to purchase a full set of original parts of a piece for your ensemble to play, then copy those for students to play from (and later destroy). It would not be acceptable, however, to give copies of originals to another separate ensemble/organization so that can avoid purchasing its own copy.

Creative Commons is a popular platform for creators to grant special permissions for specific uses. For example, this is how many marching arts programs are able to legally use samples from recent pop songs in their shows.

Can I Perform It?

If it was published/created during or before 1923, yes! All works created pre-1924 are considered public domain and are copyright free. (Note, this does not include more recent copyrighted editions of public domain works.)

It is important to remember that performance and copying are separate rights. Just because you can legally perform it, it does not mean you can legally copy music in order to perform it.

Public performance of a work does fall under a creator’s copyrights. Exemptions exists, however, for educational performances in face-to-face classrooms and noncommercial and charitable public performances. These exemptions include most of school-related performances. (Note: this exemption does not apply to dramatic works such as musicals and operas.)

Even if your public performance does not fall under the exemptions listed above, it may still be possible to obtain a performance license from an organization such as ASCAP, BMI, and SESAC.