Message-Id: <01BDF3A4.B0A177C0.lnktheriot@csi.com>
From: Ken Theriot <lnktheriot@csi.com>
To: "'minstrel@pbm.com'" <minstrel@pbm.com>
Subject: minstrel: locked and loaded
Date: Fri, 9 Oct 1998 16:48:48 -0400
Encoding: 104 TEXT
Sender: owner-minstrel@rt.com
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Okay Eogan, here goes...

First, let me say that I know you have good intentions, and you think you 
are doing right.  This is why I'm fighting you so hard, because I think 
that not only will people follow your lead, but that your quiet assurance 
will lead others to believe that copyrights are unimportant in the SCA.

Point one: YOU NEED NOT SELL COPIES FOR MONEY to be in copyright violation. 
 The very fact that you published the lyrics to your montage piece on the 
web constitutes both publication and copyright infringement (see legal 
challenges waged weekly against Mudcat Cafe, OLGA, and a host of "fan" 
sites who publish lyrics to songs without permission).  When I give out 
liner notes for my tape which includes the Stan Rogers song "Lies", at the 
bottom it says, copyright Fogarty's Cove Music, all rights reserved, used 
by permission.  This means I have talked to Ariel (Stan's widow) on the 
phone, discussed the project, and received her okay TO PRINT THE LYRICS. 
 This is beyond even performance rights, this is covered under publication 
rights, which is a whole different set of laws.

About performance: again, you need not make money.  Any commercial 
enterprise going on at the site which can broadly be construed to benefit 
from your music means that royalty fees are due.  This includes the site 
rental and any merchanting going on.  When events were in church social 
halls and public parks, and no one sold anything, we were safe; those days 
are long gone, at least for Large (kingdom-level) events.  This is why 
restaurants which play music must pay royalties.  Their BUSINESS is food, 
but they are enhancing the dining experience by playing music and therefore 
they are gaining a benefit and they PAY.  This is the site's responsibility 
(Darius) so the singer needn't worry, unless, as I've said before, the site 
gets sued and they never let the SCA use it again.

You wouldn't take a piece of armor off an armorer's table without paying 
for it!  The fighter who buys it isn't making money with it, but he is 
gaining a benefit, and he pays accordingly.  Why is it so hard to accept 
that need for creative output?

You are gaining a benefit every time someone applauds and fetes you for 
your masterpiece, when the melody, the structure, the rhyme scheme, and the 
basic idea are someone else's.  TRUE, IF you remember to credit Phil 
Colclough each time you perform, you may generate sales for him, and I'm 
sure he appreciates it (this argument is usually promulgated to excuse 
printing lyrics, too, and it never works-see below).  I'm fairly sure if 
you ASKED, he would even give you permission to publish your lyrical 
changes (assuming he holds the publication rights to his song; if he has 
been forced to relinquish them to a commercial producer, you are HOSED). 
 The sore point is assuming you have the right to change his work without 
asking, and that you have neither the legal nor moral right to do. 
 Ironically, if you pay royalties, you have enormous leeway in what you can 
do with a song (which I'm sure is what Ed Miller did), and the author 
CANNOT refuse.  This is the back side of copyright law; you pays your 
money, you gets pretty free rein.

What is going on here (Isolde, and others with "Goliath" stories) is a 
two-fold problem.  One, some rights belong to corporations who have no 
sense of scale.  Two, and much more common and important, (stay with me, 
here) NON-DEFENSE OF A COPYRIGHT IS A DEFENSE OF INFRINGEMENT.  This means 
if Phil lets you (and every other guy who does not seem to be profiting by 
it) get by with printing the lyrics, he may lose his right to sue the first 
guy who prints them for a profit.  The phrase "used by permission" 
indicates that a deal was made up front transferring the rights to publish 
for some consideration (which may be no more than good karma or "goodwill") 
and demonstrates the copyright holder's due diligence in defending their 
property.  If he doesn't go after everybody who didn't ask "please", he may 
lose his song.

And for the "who'll know" question, you not only answered it yourself with 
your "Bake-Off" example (anything advertised in any way spreads in 
amazingly ever-expanding circles, and the wrong people WILL hear of it), 
but you reckon without the spies of the American Society of Composers, 
Artists, and Producers, better known as ASCAP, and their cronies.  Their 
job is to visit schools, camps, churches, dance schools, record stores, 
restaurants, and other places of business, commerce and congregation, and 
determine 1)whether copyrighted music is being played and 2)whether said 
establishment has paid for the privilege.  Consider that this list is 
archived, and with this discussion, anyone putting "Phil Colclough" or 
"Song For Ireland" in their search engine is going to get your new lyrics. 
 You want to ask again how anybody is going to find out?

Copyright is the one area where I promise you, IT IS BETTER TO ASK 
PERMISSION FIRST than to apologize later.  Musicians DO understand about 
non-profit-making musicians, goodwill, and potential generated interest in 
their product, but they CANNOT let infringement slide without losing 
everything they have.

My comment on the scholarship issue was broad, I know.  Burns did sometimes 
cite sources, and of course it is useful to have "to the tune of" info on 
broadsides and the like.  My difficulty is where (and this is commoner for 
the other two I picked on, Walter Scott and Bishop Percy) they worked from 
manuscript evidence few people could get their hands on, which was often 
fragmentary, and "filled in" and "made the story flow better".  THEIR 
versions were then widely published, and the source material all but lost, 
or entirely lost.

My citation on "Otterburn" says "Cotton MS, Cleopatra C.iv.(circa 1550), 
and it has 70 four-line stanzas (beginning, "Yt fell abowght the Lamasse 
tyde...").  Since you are destroying nothing, and in this age of data 
storage and xerox machines it is unlikely your sources will be lost, have 
at it, boy.

				Adelaide

T-shirt thought for the day:  Never underestimate the power of stupid 
people in large groups.


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