Can a downloaded score be added to a library collection

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  • A score with performance notes was added to a website ( No licensing information was provided at the time. Acquisitions printed out the score (it was a pdf) - would we be able to add this single printout to our collection? I am thinking that we would not be able to, since it is a different version (print vs online)? I did email the website and they provided copyright and licensing information for the score. I am assuming (I know, a bad idea) that they had gotten permission to include the score on their website. Obviously, if they did not then they were violating copyright and this question would be moot. Also, could our ablility to add the score depend on market availability?
  • I think you can, especially if the composer in question is Leo Ornstein. Before I post a detailed response, I'd like to know who the composer is. What's permissible for Ornstein might not be permissible for Mozart.
  • The score in question is In C by Terry Riley
    I think you can, especially if the composer in question is Leo Ornstein. Before I post a detailed response, I'd like to know who the composer is. What's permissible for Ornstein might not be permissible for Mozart.
  • First, I'm very familiar with an area of copyright law called fair use (17 U.S.C.A. § 107). I'm somewhat familiar with some other areas and vaguely familiar with the rest. I recently skimmed all of these other sections. The sections dealing specifically with music appear to apply only to recordings and public performances, not the distribution of scores. I feel confident that fair use is the only area with which you need to be concerned.

    Fair use has nothing to do with format (print vs. online).

    Fair use must be determined on a case-by-case basis. The problem with fair use is that no one can be absolutely certain that a use is fair unless a judge makes a determination on that specific use.

    Fair use must be determined by four factors. Here are the four factors and my determination:

    1. Character of use: commercial or educational? Clearly educational in this case. This factor works in your favor.

    2. Nature of work: creative vs. factual? Clearly creative in ths case. This factor works against you.

    3. Amount Used. You are using the entire work, so this factor works against you.

    4. The effect of your use on market value. Almost everyone agrees that this factor is the most important one. Market availabilty needs to be considered, but it isn't the same as the effect of your use on market value.

    First, I tried to determine the market value of the composer.

    Ornstein's scores, the only ones I could originally find, were placed online by his son and grandson. That strongly suggests that the market value is low and that your use of Ornstein's scores would have a minimal impact.

    Riiley is a little trickier.

    I am not a music librarian. I consulted the web site you used, the composer's web site, and The New Grove Dictionary of American Music. In my opinion, Riley is an extremely important composer in a relatively unimportant movement, minimialism. The score in question appears to be the first minimialist work.

    The score is being sold on Riley's web site for $16.50. The score is autographed, but I don't know if that means Riley has personally signed every copy or if his signature was copied. If the score being sold has an original autograph, then I would suggest that the market value is slightly less than $16.50. $16.50 is significantly lower than most of the works available on Riley's site. Also, the fact that he is selling the scores himself using PayPal indicates that the market is extremely limited.

    The Other Minds web site has a statement that I don't really understand:
    "We are making available scores of new music in Adobe Acrobatâ„¢ format. As an introduction to this program we are offering Terry Riley's seminal work In C, along with his performance directions. "

    What program? I see no evidence that any program exists. I suspect that they are in the process of creating a program to sell pdf versions of scores and that the Riley one is being given away as a free demo. Maybe they are in the process of creating a program to generate CD sales and public performance licensing fees by giving away scores.

    In any case, I think it is safe to say that the original market value of this score before your use is low even when it is compared only to other Riley scores.

    Would your use have a significant negative impact on the market value? Personally, I doubt it. However, I know nothing about your library's collection or circulation figures. If you think this is going to be a high circulating item, you may want to consider buying the score. I suspect that an analysis of your circulation figures will suggest that this particular score will not be a high circulating item and will not have a significant negative impact on the market value.

    In my opinion, it is reasonable to believe that the 4th factor, the most important one, works in your favor. Two of the less important factors work against you, but the 3rd works in your favor. I wouldn't say that this is a clear case of fair use, but I believe it is reasonable to conclude that the use is fair.

    If you are comfortable with my determination, go ahead and add the score.

    Let's say the copyright holder finds out and disagrees. Just say "I'm sorry, we'll remove the item from our collection" or "I'm sorry, here's $16.50."

    You could also say that if the score is heavily used, your library would be more likely to purchase other scores and recordings. Also, a heavily used score is more likely to generate public performance fees.

    You need to make your own decision. However, based on what I know, there is no doubt in my mind that I would add the score.
  • Why not just link from your catalog to the free version on the web?

  • I was always under the impression that a library could add any legally acquired item to the collection unless the contract/license agreed to specified otherwise.

    Disclaimer in Star Trek-ese: "Dammit Jim, I'm a librarian, not a lawyer!"

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