Copyright Infringement

GEMA and VG-Wort are the corresponding PROs in Germany (for music and text, respectively).

@ mrobinson: As a composer and publisher with a particular interest in this highly-complex area of law, I applaud your participation in this discussion. It is obvious from where I sit that you are better qualified than most to address the question of what constitutes 'fair use' in various jurisdictions, and thus able to offer reliable guidelines to the many young users of MuseScore who might otherwise be confused about what they may and may not do using the software.

Would you be willing to share your expertise for a Handbook page on this subject?

This is untrue in Europe, and I believe most Berne Convention signatories, at least with respect to copyright law.

In Europe, a work enters Public Domain in these steps:

• Last remaining natural person that has contributed to the work above threshold of originality/creativity dies
• Wait until 70 years pass
• Wait until the next 1ˢᵗ January

Some editions are protected for 25 years past publication only, though.

In at least Germany, there’s also not the concept of “Fair use” as in America. To cite an existing work, there are heavy things you must do (use only smallest possible excerpts, only to support massive amount of own creative and critique work).

The MuseScore servers are in Russia, I think… that makes things even more fun.

Describing this individual as an 'entrepreneur' is more than generous by any reasonable standard I can imagine.

It is definitely an abuse of terminology to refer to this person as an entrepreneur or as anything but a fairly obvious lawbreaker.   They captured 150 terabytes of information from his servers, and it was basically all copyrighted material.   The racketeering and money laundering charges are also very likely to stick.

The determination with which law enforcement officers in two countries have pursued this case make it quite clear that they don’t think they’re wasting the taxpayer’s money.

Whether or not he himself uploaded any material to his servers, he nevertheless provided the servers upon which to upload, and brazenly encouraged others to do so in defiance(!) of the principles of copyright and intellectual property.

Owners of web sites around the world are already obliged to patrol what is loaded onto their sites and to take-down allegedly infringing materials promptly.   The “innocent infringement” defense has already been tried and rejected.

Creating a cover of a copyrighted song is not considered fair use in the US (or probably anywhere else). The copyright statutes give only very broad descriptions of fair use and do not specify all the details of what qualifies; this established more by case law. But there exists no case anywhere in the US to establish a precedent that cover song is fair use.

For more information, please consult a lawyer, or at least read some of the widely available information on the subject, such as https://www.copyright.gov/fair-use/more-info.html (the official US goverment site).

@ SgtMoosroom: There are so many incorrect statements and assumptions in your post that one hardly knows where to begin correcting you, so I'll attempt to follow the Red Queen's advice.

1. 'Covers' are NOT allowed under the doctrine of Fair Use. That doctrine is embedded in copyright law in order to allow reviewers and scholars to publish SHORT extracts from a copyrighted work for the purpose of journalistic or academic discussion, and to do so without going through the (lengthy and ofttimes expensive) process of obtaining permission from the copyright holder.

2. You have cited section 107 of the 17th chapter of the United States Code in support of your argument, but it appears you do not understand what it says. Section 107 reads as follows:

'Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

(Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2546; Pub. L. 101–650, title VI, § 607, Dec. 1, 1990, 104 Stat. 5132; Pub. L. 102–492, Oct. 24, 1992, 106 Stat. 3145.)

In that your 'cover' arrangement of the Pokeman theme meets NONE of the criteria specified in Section 107, it should be obvious that your arrangement is NOT covered by the doctrine of Fair Use under U.S. law.

3. You have cited the first amendment to the constitution of the United States in support of your argument, but from your comments it does not seem likely that you have ever READ the actual text of that amendment or (if you have) that you understand what it says. The amendment reads as follows:

'Religion and Expression. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.'

Note that NOTHING in that amendment grants any individual (such as yourself) any specific right or rights. The amendment simply prohibits the CONGRESS of the United States from doing certain things. The end result is that there are no federal laws prohibiting you from kowtowing to the god of your choice or from speaking your mind, but there is nothing in the amendment that prohibits the Congress from legislating against the theft of intellectual property...and the Congress HAS done so. There is a huge difference between the freedom to speak YOUR mind and being allowed to steal the original thoughts of OTHER minds.

4. You seem to be labouring under the misconception that you may say anything you like at any time under any circumstances. This is not true, even in the United States. The prohibition against abridgement of free speech is NOT an absolute freedom (as interpreted by the courts over the 200+ years since that amendment was written). For instance, you do not have the right to shout 'FIRE' in a crowded movie theatre when there is no fire. Speech of that sort is proscribed, not by statute, but by a jurisprudence which recognises the overriding damage such speech can inflict upon the body politic.

5. Your disclaimer is worse that useless in this context. What it says is that (a) you recognise you do not own the derivative work, and that (b) you insist on using it anyway as the basis for your 'cover' arrangement. That is equivalent to walking into a courtroom and saying, 'Yes, Milord, I copied the work of the registered owners, and I know who they are, but if any of them sue me, I'll take it to the Supreme Court!!!!!' Good luck with that argument.

Finally, the Supreme Court of the United States is the only court in that country which is not obliged to accept any case on appeal from a lower court. The US Supreme Court CHOOSES the cases it accepts, and It only accepts those cases which present new and previously undecided legal questions of major importance. (In addition, even were the Supreme Court to accept your case--highly unlikely--it would cost you between $500,000 and $1.5M dollars in legal fees to prosecute it. If you have that kind of money, you would do far better to spend it on lawyers who would tell you pretty much the same thing I'm telling you for free.)

@onscuba: Thank you for that comment and for Doing the Right Thing. :)

But you are probably underestimating the cost of a professional big-band edition. About 15 years ago I bought the Glenn Miller Band's original arrangement of 'American Patrol' and the score and parts cost me close to $100US even then. It is almost certainly higher now, so a fee of $100 for permission to publish your own arrangement seems quite reasonable.