Archive for April, 2010

Copyright Infringement: Ignorance Was Bliss, Now I Feel So Dirty

Monday, April 12th, 2010 by

Poor beautiful girl

I used to play the upright bass quite a bit.  Unfortunately my beautiful axe has been more of decoration than an instrument of late.  It’s been broken for several years now.

I played straight ahead jazz, usually at restaurants that wanted a trio to quintet sized group for a handful of hours on the weekend, the occasional festival, weddings, that sort of thing.

At the majority of these type of gigs if the performers are reading the music they’re doing so out of what’s called the Real Book, a spiral bound collection of poor quality Xerox copies of transcriptions of common jazz standards.

I remember my first encounter with this ‘publication’.  Some character pulled up outside of a summer jazz workshop at a college in a beat up old Caprice and popped the trunk to reveal the various volumes and keys it was available in.  I bought my first Real Book from that dude (a well deserved moniker), and several more from music stores that kept them behind the counter and would look both ways before pulling them out for sale.

So cool, so illegal

This thing might as well be hot. As you can guess, the ‘real’ Real Books have not obtained the any licensing rights or permissions from the original composers or their estates and as such are infringements of copyright and illegal.

The music was transcribed by hand in the 1970s from popular recordings, often performed by the composers themselves, so for musicians it’s the real deal.

The legal ones suck. There are completely legal, licensed versions of Real Books, and I can tell you from experience that they are not fun to work with.  First of all, they’re wrong.  Somewhere in the process of being approved and verified by the estates and publishers they’ve strayed from the way they were usually performed and recorded so they just don’t sound right.  Secondly, the collection of songs doesn’t match those in the illegal book.  I’m sure legal publishers would never be able to afford to obtain the rights to all of them and still turn a profit.  Lastly, even if you do find the same song in both the legal and underground books, again, they’re not the same, and you can’t have musicians reading both.

Let’s suppose that all the musicians in the group have unanimously decided to play only from legal Real books, or maybe they just don’t need any sheet music.  All rights cleared, let’s count it off… right?

Oh wait, performance rights. Even though rights may be cleared on the written sheet music there are also public performance rights involved.  Much of the onus of performance rights lies with the venue, but musicians are partially responsible too.  Worship services are an exception where permission is not required.

ASCAP represents a large number of composers, authors and publishers, and businesses can obtain a license for performances.  Then all the manager of the venue has to do is get every band to lookup every song in ASCAP’s repertory to ensure it’s covered and playable.  Yeah, right.  In all the gigs I played I don’t think there was a single place that mentioned anything about having an ASCAP license and only one musician said they were a member, and he was primarily in it for the composer side of things.

So are all these jazz musicians rolling their doobies in printed excerpts of copyright law and laughing in the face of the hard working composers behind the music?  Truth be told I didn’t meet very many ‘cats’ that were into illicit drugs, and who has rolling papers that fit in their printer anyway?  So, no.  My guess is that most of these artists would be happy to throw a few bucks from each gig to the creative souls who helped make the night possible, but the reality is that connecting these two parties, defining and negotiating the license, and transacting that small of a payment is normally an unreasonable hurdle.

That’s what we’re trying to accomplish with RightsPro, making it easier for rights holders and licensees to get through the licensing process so everyone is cool.

I dropped my bass off at the luthier this week and with any luck I’ll be able to practice enough in time to accept an upcoming gig next month.  Unfortunately, it’s very likely we’ll be infringing on copyright yet again, but I plan to do everything in my power to avoid it.  I don’t see anywhere on ASCAP or BMI’s site about musicians obtaining licenses directly but I’ll continue to investigate.  I’ll be spreading awareness by asking any venues if they have obtained a BMI and/or ASCAP license.  I’ll be discouraging fellow musicians from purchasing illegal Real Books.  And lastly, we’ll continue our hard work on RightsPro so I can one day easily give the greats their slice of the pie.