Another Tab Site Threatened

Mike: Aye, but that's just those who download rather than those who 'distribute' by offering - not quite as tasty to the lawyers. I had a thought about this though, if someone sets up a tab site running from somewhere like Sealand, they should be untouchable. If the lawyers do manage to shut down all the other ones, they'd have a huge, captive audience and plenty of advertising dollars...

Stardust: You know that if you sing happy birthday in as public place with more than x people present (10 I think) you owe royalties? It's still copyrighted and technically you are performing it to the public. :roll:

That's just disturbing.

There's no 'x people present' rule - lawyers wouldn't stand for that... it's too clear! Instead, you can't sing it before a 'substantial' number of people. That way lawyers get paid in a case involving 8 or 9 too, even if they lose the case :)

There's even a 'grassroots movement' (Time Warner?) to get folks to turn in infringers: Unhappy Birthday

There's no 'x people present' rule - lawyers wouldn't stand for that... it's too clear! Instead, you can't sing it before a 'substantial' number of people. That way lawyers get paid in a case involving 8 or 9 too, even if they lose the case :)

There's even a 'grassroots movement' (Time Warner?) to get folks to turn in infringers: Unhappy Birthday
God, I hope thats some kind of a parody :shock:

There's no 'x people present' rule - lawyers wouldn't stand for that... it's too clear! Instead, you can't sing it before a 'substantial' number of people. That way lawyers get paid in a case involving 8 or 9 too, even if they lose the case :)
Ahh, yes, makes sense (in the leave it vague and let the lawyers thrash it out sense) and sounds familiar now...

This post raised a lot of questions (and ire). I am a lawyer with experience in IP litigation (hence the "esq" in my user name) and I will try to explain what I believe are the basics of the music industry approach and the merits of the issues. However, this is a very complicated legal area and most disputes will turn on the specific facts in any given case.

1. Almost all of the music on the tab sites are probably subject to copyrights owned by the artist/record company/publishers. In order to be allowed to properly utilize that music, you need a license from the owner.

2. Simply because some tabs might be an individual's personal interpretation of a piece of music, that doesn't eliminate the owner's copyright protections. Otherwise, the copyrights would be easily rendered valueless by mere modifications. Also, copyrights cover the "derivative" rights for musical arrangements. The test for infringement of a copyrighted work is "substantially similarity." If a tab results in a piece of music being substantially similar to the original copyrighted work, then there is a potential claim for infringement.

That said, there is the "Fair Use" doctrine, which is a very complicated legal issue. Put simply, it is not copyright infringement if the use is for criticism, comment, news reporting, teaching, scholarship, or research. However, 4 factors are balanced so that the "Fair Use" doctrine does not swallow up the copright protections: (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.

In short, because a piece of tablature might well result in a musical composition that is substantially similar to the original, copyrighted work, there is potential exposure for copyright infringement. That's why David puts his "Fair Use" disclaimer on all of his lessons and should continue to do so.

3. Going after the ISP has at least 2 virtues for the music industry that I can see. First, it is an added pressure point on the actual tab sites. ISPs probably don't care what is being published on the site as long as it doesn't create a legal/financial headache for them. Once there is a headache, it might well be easier to just shut down the site rather than go through the time, money and aggravation of a legal battle. Second, there may be some liability for the ISPs. Though the case law holds that an ISP will not be a "direct infringer" for hosting someone who is violating a copyright, it may have some exposure as a "contributory infringer" if the ISP has sufficient knowledge of, or participation in, the infringing activities. Recent legislation has curtailed even further the ISP's potential liability, but it still exists.

Just like with the file sharing sites and users went through litigation with the industry, much of this is done to be a deterrent. The industry can't shut everyone down, so they pick a few to try to make an example out of and hope they scare all of the rest out of business.

4. You can sing or perform "Happy birthday" without repercussions because that song is in the public domain. Though it is a bit complicated, basically a copyright has a term of a 70 years after the author's death, and pseudonymous works last 95 years from publication or 120 years from creation, whichever is shorter. Once it expires, anyone can use the material. That's why old literature and other e-books are readily available.

Okay, I'll stop boring/aggravating you now. Let the rants and bad lawyers jokes commence!!!!!

4. You can sing or perform "Happy birthday" without repercussions because that song is in the public domain. Though it is a bit complicated, basically a copyright has a term of a 70 years after the author's death, and pseudonymous works last 95 years from publication or 120 years from creation, whichever is shorter. Once it expires, anyone can use the material. That's why old literature and other e-books are readily available.

From http://www.snopes.com/music/songs/birthday.asp :

Under the laws in effect at the time, the Hills' copyright would have expired after one 28-year term and a renewal of similar length, falling into public domain by 1991. However, the Copyright Act of 1976 extended the term of copyright protection to 75 years from date of publication, and the Copyright Term Extension Act of 1998 added another 20 years, so under current law the copyright protection of "Happy Birthday" will remain intact until at least 2030.

There's some good info here too explaining how, in this guy's view at least, the melody is in the public domain but the lyrics aren't.

I stand corrected on Point #4...I did not realize that "Happy Birthday" had a traceable origin and a registered copyright. But as you can tell from the story of happy birthday (thatnks for link), valid copyrights last a looooonnng time before going into the public domain.

Aye. I didn't thank you for the rest of the info, either (sorry, stressy day at work, hence the frequent browsing sessions :)), it was all very interesting.

Fair use is one thing that I thought might be a good get out for at least the simpler tabs. If you interpreted the substantiality of the portion used to be in relation to the instument tabbed, rather than the length of the section tabbed as people would proably tend to do, might you argue that case in court?

Ie, If I tab just a solo, I could easily argue that it's "just a portion" of the song because timewise it is. If, on the other hand, I tab the whole song for one guitar but the song also contains another guitar, a bass, drums, keyboard, vocal melody, lyrics etc., is that also "just a portion" in relation to all the untabbed info?

Powertabs/guitar pro etc might have a harder time with that approach though, even if it is viable, as they tend to include much more info.

Again, it is a fact-intensive issue. There is a doctrine called the "de minimis" doctrine. Basically, where a small fragment of the copyrighted work has been copied, it may be so insignificant that it doesn't meet the "substantial similarity" test and/or becomes a big factor in the "fair use" analysis. Yet, even this doctrine is being cut back by the courts (one court has concluded "get a license or do not sample" with respect to 2 seconds of a recorded musical piece, though the analysis is different for the recorded work than the musical composition/sheet music). So tabbing a small portion of the whole composition might fall under the "de minimis" defense.

But the tab sites very, very often tab out at least the melody for 1 guitar (and often for more guitars, plus the lyrics). Every case is different and specific to its facts, but in general, the music industry is not making baseless claims against the tab sites.

SO, if I were to tab out a portion of a song, then document it with comments pertaining to how the song is played, how the chords are formed etc. Would that qualify under fair use as educational?

I know case law would be different for tab (the mechanical license part of the intellectual property) than for recordings (the performance license part) - but I think courts have held samples liable for infringing without permission when they sampled just three notes!

I honestly don't see the music industry winning. I mean, you saw how when they attacked napster, and it fell, five more programs rose to take its place. They're their literally fighting an entire world of musicians.

teleplayer324: As I would tell a paying client (read, not you...at least not yet) who I was advising to take proactive steps to avoid liability down the road: "It may not insulate you from liability, but taking those steps is better than not taking those steps."

NoteBoat: That "3 note" case is the same as the "2 second" case I referred to earlier. It is called Bridgeport Music, Inc. vs. Dimension Films, a sixth Circuit Court of Appeals decision from 2004. If you are interested, or are having trouble falling asleep, you should be able to read it at http://www.ca6.uscourts.gov/opinions.pdf/04a0297p-06.pdf

iraesq, I appreciate the explanation of the law pertaining to copywrited material. However I do know with patents I believe as long as enough of the product is changed the product can be marketed under the new name. Cell phones are a good example as well as mp3 players. As long as the new design has a certain percentage difference from the original it can be marketed. Why would this apply to the tabs? I understand that if someone just tabbed the original song from one key to another there would be an infringement.

As for the educational part of what you said...it seems that part is wide open for interpretation. If these tab sites were to restructure the format for posting tabs (ie. make a lesson plan out of them) then I would understand it to be educational material and long as the tabs are not being sold. I would even go as far to say that advertising should be removed so that NO money changes hands...maybe a "donation" section for those willing to contribute.

Like I mentioned in my original post...the laws need to be completely re-written to incorporate the new technology. At one time cassette tapes and VCR's were attacked and they are both still here. Now it's hard drives, CD's and DVD's turn to be attacked. IMHO it should be the ARTIST who makes the final call as to whether their songs should be allowed tabbed on the internet. Immatation is the strongest form of flattery...this should apply here as well.