Photocopies and “fair use”

Making copies in any form is one of the rights assigned exclusively to the copyright holder under copyright law. In addition to the usual copyright notice of “All rights reserved,” publishers sometimes use stronger wording to reinforce that photocopying sheet music is illegal. As handbell musicians, we want to do the right thing, but that can be difficult with so much misinformation floating about.

Read here about:

• The myth of the ‘working copy’
• Ways to accommodate copying restrictions
• What “fair use” really means

Please note that I’m not an attorney, and this article doesn’t constitute legal advice. The purpose is to share my own experience and research with you, one handbell musician to another. If you need help understanding how copyright law applies to your situation, consult an intellectual property attorney who can properly advise you about this complex legal specialty.

Handbell soloists often need multiple copies of a piece. We may have one or more accompanists who need the piano part, we want to mark up a score with choreography while keeping a clean version, we may want a copy to study at home and another at the church where we practice. Some choir ringers make a copy so they can highlight their part, while keeping a clean copy in the binder or on file. They mistakenly believe it’s OK to make a “working” copy. But sheet music is a consumable item, and you’re allowed to use as many copies as you pay for. If you need two copies for any reason, buy two.

Here are tips to reduce the need for photocopies:

• Plastic sleeves will keep sheet music pristine if that’s important to you.
• Mark up the original with something you can erase later. Possibilities include Dixon-Ticonderoga pencils (easier to erase than other types), removable highlighter tape (Tempo Tape), or erasable highlighter.
• Go ahead and mark up the original with whatever you like. If in the future you must have a clean copy, buy another one then. I do this when documenting choreography. If a piece gets to the point of performance, I’ll order a second copy for my accompanist, which will come with a clean copy of the handbell part as well.
• Write notes to yourself (e.g. choreography) on a separate sheet of paper.
• Order two copies in the first place, if it may be hard to get more copies later (such as ordering from overseas, or out of print music).
• When touring as a soloist, look for other handbell soloists locally who may own the music and be willing to lend it to your one-time accompanist in that city.

Tips for getting sheet music back from others:

• I stamp all my sheet music with my name (you can have a stamp made at most office supply stores).
• I put sheet music in a binder whenever I give it to an accompanist. The binder has my name, phone number, and a handbell picture on the cover.
• If I give music directly to an accompanist, not through an intermediary (for example, a conference or concert organizer), I’m more likely to get it back.
• If working with a musician other than my regular accompanist, I always ask for my sheet music immediately after the last performance.
• When working with my regular accompanist, we prune old material out of her binder after each concert cycle, which also keeps the binder manageable.
• When lending sheet music, I keep a log of what I gave, to whom, and when.

If you know you’ll need multiple copies of a piece, or to send it somewhere (for a handbell conference or a tour with multiple accompanists), choose music in the public domain, your own arrangement, or music from a publisher that grants a master license to make as many copies as you need for your own use. Read the terms of the license carefully. For example, STEP grants a license to make only a certain number of copies, like four for a quartet piece. Other publishers grant a license for as many copies as you need for yourself and whoever performs with you. That means you can use multiple accompanists but not give the work to another soloist.

I’ve found that, in general, only online publishers grant master licenses to make copies. Publishers who provide printed material expect you to buy as many copies as you need from them. An exception is handbell music with a separate instrumental part, where the publisher may note on the sheet music that a particular page or pages may be photocopied. Another exception is books published specifically for teaching, which may be reproducible, like Martha Lynn Thompson’s ‘Tunes that Teach.’ Solo collections are often organized so the soloist and accompanist can each have part of the book, to eliminate the need for copies.

For out of print music, contact the publisher and ask about their policy. They may have arrangements for Print on Demand music, they may grant you permission to make copies, or they may refer you to a resale source, like Young’s Music Store.

Sometimes you have a special situation, like needing to enlarge the score for a musician with vision deficiencies, or needing to copy onto heavier paper for outdoor use. You must ask the copyright holder for permission. Handbell publishers are usually quite helpful and willing to grant reasonable accommodations, but they’re not obliged to. Google the publisher, go to their website and look for ‘permissions’ or ‘licensing,’ and send an email with your request. Don’t rely on the fact that services for the blind routinely make large print, Braille, or sound versions of copyrighted works, and assume that means you can too. Copyright law contains a specific exemption for those particular organizations, but not for just anyone. Remember that there are alternatives, like having glasses made for reading handbell music, or cutting the sheet music apart and putting each page in heavy plastic sleeves.

Another common need is facilitating page turns. I’ll talk more below about fair use and how much of a work you can legally copy. A few measures at the bottom of the page will probably be OK. Pianists sometimes copy a whole page, and that’s more of a gray area. Again, there are other options:

• Buy enough copies of the music so you have an extra page when you need it
• Cut the music apart and reconfigure the pages so the turn occurs at a better point. If the music belongs to you, you can cut it horizontally and turn part of the page while still looking at the rest of it.
• Have someone turn pages for you
• Memorize measures
• Drill the measures surrounding the page turn until it’s smooth
• Look on with a neighbor, perhaps with one person turning early and the other turning late

Handbell directors sometimes order music with insufficient lead time, so they obtain a single copy, then make multiple copies while the music is on order. This seems pretty lurky to me. If you need to do this, ask the publisher for permission. In general, though, this sort of life-or-death handbell emergency is a symptom of poor planning. Options to consider:

• Allow more lead time to prepare handbell works
• Have sheet music sent by express mail
• Use something already in your library, or something you can download and legally copy
• Develop repertoire you can play with minimal lead time
• If you often get asked to prepare on short notice, talk to your pastor or whoever makes the request about giving you sufficient notice

While it’s convenient to scan music and keep it in an online library or email it to others, duplicating sheet music by mechanical means is copyright infringement, if you don’t have permission for the duplication. It’s better to mail the originals, drop them off, or ask to have them picked up.

Handbell sheet music can be expensive, and sometimes people justify making illegal copies on the grounds that is all they can afford. It would be better to have fewer pieces in your library, or ask ringers to share copies. Maybe someone in your parish would sponsor a piece of music in honor of a special occasion, like an anniversary, or as a memorial. The handbell director will want to keep control over the musical selections, but such sponsorship could be a good solution. People love to give something tangible to a church, and often have a soft spot for the handbell choir. So ask.

A church may have a blanket license like CCLI or LicenSing that permits copying hymns in a service bulletin and other uses of copyrighted music. These licenses generally don’t cover photocopying handbell music. The United Methodist Church website has an excellent online summary of what each blanket license does cover.

Fair use:

Handbell musicians often mistakenly believe their photocopies are exempt from copyright law under the doctrine of “fair use.” Fair use allows some duplication of copyrighted information in limited situations, such as comment, criticism, or parody. It’s a narrow legal term, and doesn’t mean that if a use “seems fair,” then it’s allowed. In determining whether a use qualifies as fair use, judges consider four factors:

• Purpose and character of the use (transformative factor) – did you make something new, or just use what was there?
• Nature of the source material – is it factual or creative?
• Portion used – did you use something in its entirety, or a small portion (10% or less)?
• Effect on the market for the work – is your use a substitute for purchasing the work?

Applying these factors to photocopying handbell sheet music:

• Nothing substantially new is created.
• The source is sheet music, a creative work.
• Most or all of it is usually copied.
• The photocopy is a substitute for buying another copy.

My conclusion: copying without permission of the copyright holder can’t be justified under “fair use.” Columbia University has a Fair Use checklist online to help you evaluate other circumstances.

Another situation we often see in the handbell community is photocopied music in classes at handbell events. While using material in a face-to-face teaching situation in a non-profit setting may result in a finding of fair use, one could argue in favor of other options:

• Borrowing sheet music
• Purchasing sheet music specifically as a teaching resource
• Using examples you created yourself
• Using public domain material to illustrate your point

For a reading session, where participants may want to buy the music, you can order music on approval and send it back as needed. Some vendors (like Jeffers) have a process to facilitate this.

When you consider the economics of publishing for handbells, you’ll see how important it is to pay for all the sheet music consumed. A published choral work may sell to 1000 churches who buy 40 or 50 copies (or more, in a megachurch). A published handbell choir work may sell to 100 churches who buy 10-15 copies. A best-selling solo handbell work may sell to 50 handbell soloists who buy 1 copy. I value the work composers do, and I expect to pay them for their product. I’d love to see more people in a position to pursue composing for handbells as their main source of income, and for non-handbell composers to consider it worthwhile to write for us. Just imagine what that would do for the instrument.

Note: all web addresses are maintained on the Links page.

U.S. Copyright Law
Columbia University Libraries Fair Use Checklist
Copyright Community – copyright resources for the Christian arts community
Music Publishers’ Association – see their Copyright Resource Center for a directory of publisher addresses, FAQ, and links to other copyright resources
Music Teachers National Association
Stanford Copyright and Fair Use Center

Copyright © 2012 Nancy Kirkner,