Ebay item: transcribed sheet music - comments?

[Cayden]

On 2002-03-07 21:42, Flying Piper wrote:
Can anyone join this posse? I've got a good strong rope!

Well, you can expect a bit of stick if you start trying to make money on the back of other people's work.

Jimmy O Brien Moran had (among other things) the following comment:

'I wouldn’t mind seeing his versions to compare them to what I think I play'

Maybe a hint to send him a few copies and at the same time ask him permission to publish?

[colomon]

Bob, I answered your question before you asked it. The guy who made the notations absolutely does have the copyright on them. But that does not mean he has any right to distribute those notations. Copyright is basically the right to stop other people from copying your work without your permission. Having copyright does not grant you unlimited permission to copy something yourself.

For instance, suppose I write my own novel which explains how Anakin Skywalker goes from annoying kid to Darth Vader. In doing so, I've obviously violated a ton of Star Wars trademarks, and I've got absolutely no right to distribute the end result. Never-the-less, I would have copyright on it, and so George Lucas could not turn around and sell my novel himself without my permission.

Or to put it in a different perspective -- all your arguments would seem to be exactly the same if he were notating someone's original tune. But I think most of us would agree that people shouldn't have the right to publish notation for other people's compositions without their permission.

[colomon]

This particular case fails in a gray area. I've no idea what the relevant law is on exact what constitutes an arrangement -- are jazz solos protected? My gut feeling is they definitely should be, but now that I think of it, my suspicion is they are not. There are all sorts of weird twists and turns in this area of law, and I won't pretend I know them.

Still, from the response the sellar gave, he has no clue if he has any legal standing to sell his transcriptions -- the way he describes how things work is wrong. If he isn't violating the law, it's a lucky coincidence for him.

At a minimum, though, it's pretty damn rude to sell transcriptions of someone else's work without that person's permission.

[colomon]

As for what's moral (as opposed to what's legal) -- that's another mess of gray.

Consider the question of notating someone else's compositions. Let me use a real example. My friend Dale transcribed "Goodbye Miss Goodavich" by Donogh Hennessy and gave me a copy. Clearly illegal, but it's hard to imagine anyone objecting, and in fact, when I told Donogh about it a couple of years ago, he smiled and said "That's great."

I don't know if he'd have smiled so much if Dale or I had then gone ahead and posted the ABCs to the web. And I'm pretty sure he'd have been upset if we'd proceeded to transcribe every tune from the entire album and posted them together in an easy to find collection. Because that starts to get to the point where it could obviously cut into the sales of the Lunasa Sheet Music book Donogh's supposedly been working on.

And if we made a collection like that, printed it out, and started selling it, I imagine we could be looking at legal action.

Clearly selling the stuff is wrong. But it's unclear to me exactly where the early actions shade from right to wrong. Certainly I don't see how you could make a sensible law which allowed the friendly little copyings but stopped them from getting out of control.

[Cayden]

I would think the artist has the actual copyright on the performance and subsequently of it's content. The tune itself may be traditional, the performance is that o the artist. I don't think there is any problem in making transcriptions and distributing them for learning/study purposes. When you out to make money from them without even asking permission from the original performer it becomes a horse of a different colour. I don not think it's, to say the least, very ethical.

[bob baksi]

If my assumptions of critical facts are accurate, which I think apply in our case under discussion,namely:
1. The musician before performing the public domain tune never reduced his/her unique performance characteristics into written notated form
2. The Notator has created the Notations using a purchased CD or equivalent legitimate audio source
3. The CD or legitimate source fails to claim copyright in any notation of the performance

then, it is my opinion that the Notator is entitled to copyright in the Notation (if properly claimed and protected) and is free to publish and commercially sell his copyrighted publication without any legal obligation to the Performance Musician.
I don't believe the Notator has acted rudely or unethically or illegally in ignoring the Performance Musician. Peter, I respectfully disgree with your view that the Notator is living off the back of the Performance Musician. The Notator hasn't taken anything from the Musician that the Musician had a right to.
If the Musician had copyright on his unique "licks" at a performance or recording, then by your logic, not only should I be unable to notate those licks, but I shouldn't be able to reproduce those copyrighted licks by playing them myself...or would you then propose that I could reproduce them non-commercially but not if I was being paid to play at a pub ?
I belive your criticism of the Noatator was not fair play.
Speaking for myself, I might even go out and buy the Musician's CD ONLY BECAUSE I can now purchase from the Notator a "companion" inexpensive Notation.
MY SUGGESTION TO PERFORMANCE MUSICIANS WHO WANT TO PREVENT PERFORMANCE NOTATORS FROM MAKING A LIVING: Do your own Notation and publish it (that is,include the written Notation)with the CD, claim copyright on the Notation as well as the performance, and make tons of money to hire a flock of lawyers to try and enforce your claim.

[thomlarson]

I see that eBay has now shut down the auction in question...

[garycrosby]

I am not an intellectual property lawyer but I do deal with one from time to time, here is my opinion.

Here is the situation:
(1) An artist performs a new and unique version of a public domain tune - the CD containing said tune is lawfully copyrighted because the tune is considered to be unique and (because the original is public domain) there is no copyright claim on the original.
(2) Notator makes a written form of the new, copyrighted performance and sells it without permission of the artist.

IMO here are the legal ramifications based on my limited understanding:
(1) The notator has actually created a "derivative work" of the artist's copyrighted original - a derivative work is one that is largely based on a copyrighted work but does not have to be in the same format (example, written music can be a derivative work of a musical performance).
(2) In the US and Canada (I don't know about other countries), the copyright holder of the original work has claim on the derivative work created from his original work.
(3) Because of (1) and (2) the notator cannot claim copyright of a work he derived because it automatically belongs to the artist.
(4) Because of (1) and (2) the notator is in breach of copyright law because he is distributing and selling a copyrighted work without permission.

I am not a lawyer. The preceeding should not be construed as legal advice. It is just an opinion. Have a nice day

[Flying Piper]

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I'm not going to waste much of my time trying to talk sense to a Lych Mob of self righteous Bible Thumpers, but I want to thank Bob Baksi for trying to do so on my behalf, so I guess it's time I spoke up. Then I've got more important things to do.
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1) It was always and still is my intention to pay mechanicals to the performers, wether legally due or not. I would like to work out a
mechanical royalty to the performers, as I think they deserve it, although Seamus Ennis, John
Doherty, Willie Clancy and Joe Cooley will be hard to get in touch with.
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2) I HAVE contacted those performers that I could and NPU is helping me get in touch with the rest.
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3) These transcriptions were made as educational tools, not as a money-making scheme. That's why I made the transcriptions in the first place: to learn
pipering from the best pipers. And it helped me immensely. After only two
years of pretty darn fast progress with my pipering, I was playing pipes professionally, and I thought maybe other
people could benefit from them as I had and learn from different players
with different approaches. I was also confused in the beginning about just how to roll and
cran on certain notes and wanted to analyze how the best players executed theirs. This
really cleared up a lot of confusion for me. Also having to stop and work
around those ambiguous rolling and cranning symbols in other Irish
music transcriptions was frustrating. I wanted to know EXACTLY how it
was done. No guessing. A good personal interpretation and sense of
embellishment and variation comes from knowledge, not ignorance. I
also heard "triplets" mentioned a lot, when I didn't hear any being played.
And I got really tired of hearing that Irish traditional music was impossible
to notate. (I'd like to show you also how I notate slow airs that have no meter.) Now that I've
done these note-for-note transcriptions, I can sit down and read through
Pat Mitchell's and Terry Moylan's books and interpret those ambiguous
cranning and rolling symbols on the fly, and also interpret new tunes in
my own ways within the style.
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4) I guess I may have jumped the gun in offering them
for sale before tracking down all the performers, but I don't think I deserve to be called a thief! None of you has even seen one of my transcriptions! I think people can
learn from these, and the tiny amount I am charging ($2.25,
shipping included) barely covers my costs. I really wish they could be free and I could be free and not have to pay for nothing or do nothing I want to be FREE free as the wind! But I've got bills to pay too, Colomon.

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5) Does Peter Laban consider Terry Moylan and Pat Mitchell to be lowdown horsethieves making "money off other people's work" by publishing their own transcriptions? He also says I'm "getting on the bandwagon to make a bit of money." Well, what is he doing selling those photographs on the web of Irish musicians at Willie week? And I don't suppose he pays them mechanicals or helps finance those expensive instruments they're playing in his photographs that he is selling. Why doesn't just give the photographs away to whoever asks for them instead of selling them? Oh, they cost money to develop and print and his camera is expensive, and he's got bills to pay, and he thinks his time and skill is worth something? Huh. Interesting.
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6) Thom Larson:

No, transcribing aural music into written music is not the same as writing down the dialog from a rented DVD and selling it. That's called a script. There's a copyright on the script. It is really more like Michael Glenny's or Burgin & O'Connor's English translations of Mikhail Bulgakov's The Master & Margarita, each of which has its own copyright and collects its own publishing royalties.
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AND WOULD ALL YOU PEOPLE WHO CLAIM NOT TO BE LAWYERS STOP INTERPRETING COPYRIGHT LAW TO SUIT YOUR FANCY?
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If you're so opposed to my transcriptions and don't think you can learn from them because you already know it all, then just stay ignorant. I won't sell them to you guys anyway. And get one of the performers to lead your posse or go away. Go thump your bibles at someone who's really infringing on other people's human rights.

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Tom Gonta-Kilcoyne

FlyingPiper.com

Brewer / Piper /
Patriot
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[Flying Piper]

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Yes, Thom Larson, my auction/promotions have been shut down, but not for any copyright infringement.
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It was my first "Dutch" auction and I guess I did not fully understand how to run one. I guess I'm guilty of:

"Dutch Avoidance - Listing a single item and offering additional
identical items for sale in the item description. In these situations, the
seller typically instructs bidders to indicate the number of items they
want, and states that they can get the same price as the item in the
listing."


'Your listings indicate that you are attempting to circumvent the eBay
fee structure. Because they are in violation of eBay's fee
circumvention policy, your listings have been ended early. All associated fees
have been credited to your account."
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That's OK. Gives me more time to tweak them for publication. Thanks for all the attention and advertising. Sure is nice to be noticed!
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[garycrosby]

I'm not trying to make this thread any nastier than it has already become but I did want to raise two points (none of this is mean't to be a troll):

(1) First of all, I just wanted to emphasize that my argument assumed (perhaps incorrectly) that you did not have permission from the original artists to distribute transcriptions of their work - if you do have permission (in some cases at least as you imply with "I HAVE contacted those performers that I could ...") then that changes the situation entirely.

(2) You were quick to point out that people who aren't lawyers shouldn't interpret the Copyright Act to "suit your fancy". Its probably prudent advice but just before this statement you provided your own interpretations of copyright law: (a) "No, transcribing aural music into written music is not the same as writing down the dialog from a rented DVD and selling it. That's called a script ..." and (b) "...English translations of Mikhail Bulgakov's The Master & Margarita...". I am curious to know if you got some legal advice with regards to selling your transcriptions of copyrighted works? The reason I ask is that I understood that music written down from a (copyrighted) performance is classified as a derivative work - if you have an argument or information to the contrary then I would like to see it.

Outside of this argument I would like to make a suggestion for your website (which I did visit BTW). I think that showing a sample transcription (or a portion of one) would be useful to prospective customers. Personally, I hate to buy anything before I at least have an idea of what I'm getting. I think would increase sales

Best of luck!

[Flying Piper]

Ta!

[billymac]

3 pints ogf Guinness, a half bottle of whisky, pick up your whistle and play your heart out. Thats the way to do it:-)

[LeeMarsh]

On 2002-03-08 13:49, Flying Piper wrote:
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... 1) It was always and still is my intention to pay mechanicals to the performers, wether legally due or not. I would like to work out a mechanical royalty to the performers, as I think they deserve it, although Seamus Ennis, John Doherty, Willie Clancy and Joe Cooley will be hard to get in touch with.
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2) I HAVE contacted those performers that I could and NPU is helping me get in touch with the rest.
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3) These transcriptions were made as educational tools, not as a money-making scheme....<P>
Tom Gonta-Kilcoyne

FlyingPiper.com

Brewer / Piper /
Patriot
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Tom,
I think this is the most important information in your post. No one had that. It wasn't mentioned in your advertisement nor at your website listings. I think you'll do much better with selling these, especially since the price is moderate, if you include this information in you auction description and in you website list.

You are clearly indicating your desire to reward the performers, authors, arrangers, etc. for their contributions, while making addition money for the value-added that exact notation provides. If this had been clear in the auction description or at the website, I would not have made my earlier comments.

You might want to update your website so people know your intent and your efforts to demonstrate that intent, regardless of the legalese that will complicate everything.

[thomlarson]

On 2002-03-08 13:49, Flying Piper wrote:
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...a Lych Mob of self righteous Bible Thumpers
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Hmmm, I don't recall seeing any biblical references in these postings, maybe I missed something. It looks to me more like people that believe that a Performer should have a say in how their original interpretations of a piece are published. I know that I would certainly want to at least see a piece that someone was saying was a note for note transcription of one of my works before it was put up for sale...
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On 2002-03-08 13:49, Flying Piper wrote:
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1) It was always and still is my intention to pay mechanicals to the performers, wether legally due or not. I would like to work out a
mechanical royalty to the performers, as I think they deserve it, although Seamus Ennis, John
Doherty, Willie Clancy and Joe Cooley will be hard to get in touch with.
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2) I HAVE contacted those performers that I could and NPU is helping me get in touch with the rest.
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In my opinion, it sounds like this was the exact point of most of the postings here that seemed negative to you - this should have been done before the transcriptions were listed for sale. Even if some of them would be "hard to get in touch with", someone owns the rights to these artist's works.
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On 2002-03-08 13:49, Flying Piper wrote:
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6) Thom Larson:

No, transcribing aural music into written music is not the same as writing down the dialog from a rented DVD and selling it. That's called a script. There's a copyright on the script. It is really more like Michael Glenny's or Burgin & O'Connor's English translations of Mikhail Bulgakov's The Master & Margarita, each of which has its own copyright and collects its own publishing royalties.
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I would think that someone so very adept at verbatim transcription would have noticed that I never mentioned anything about DVDs in any of my postings...
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On 2002-03-08 13:49, Flying Piper wrote:
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AND WOULD ALL YOU PEOPLE WHO CLAIM NOT TO BE LAWYERS STOP INTERPRETING COPYRIGHT LAW TO SUIT YOUR FANCY?
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In rereading these posts, it appears to me that everyone is posting their <B><I>opinions</I></B> on this matter, which certainly should be acceptable in this type of public forum.
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I personally applaud your transcribing of these pieces - I sell legally copyrighted transcriptions myself. My point is that the Performer (or copyright owner) should have a chance to agree that it is indeed a note for note transcription (and that they approve of you publishing it) before you advertize it as such - <B>IN MY OWN OPINION</B>

<font size=-1>[ This Message was edited by: thomlarson on 2002-03-08 22:54 ]</font>