throbber
NO. 10-545
`
`
`In theIn the
`In the
`
`In theIn the
`
`Supreme Court of the United StatesSupreme Court of the United States
`Supreme Court of the United States
`
`Supreme Court of the United StatesSupreme Court of the United States
`
`LAWRENCE GOLAN, et al.,
`Petitioners,
`
`v.
`
`ERIC H. HOLDER, JR., Attorney General, et al.,
` Respondents.
`
`On Writ of Certiorari to the United States
`Court of Appeals for the Tenth Circuit
`
`BRIEF OF THE CONDUCTORS GUILD AND
`THE MUSIC LIBRARY ASSOCIATION AS
` AMICI CURIAE SUPPORTING PETITIONERS
`
`STEVEN A. HIRSCH
` Counsel of Record
`KEKER & VAN NEST, LLP
`710 Sansome Street
`San Francisco, CA 94111
`(415) 391-5400
`SHirsch@kvn.com
`
`Counsel for Amici Curiae
`The Conductors Guild and
`The Music Library Association
`
`June 20, 2011
`
`Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
`
`

`
` i
`
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . .
`
`ii
`
`INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . 1
`
`SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . 2
`
`ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
`
`I.
`
`II.
`
`III.
`
`Section 514’s amendment to the Copyright
`Act retroactively grants copyright protection
`to works previously in the public domain. . . 3
`
`This grant of restored copyright protection
`has had a direct and dramatic effect on
`musicians, orchestras, music
`libraries,
`scholars, and students. . . . . . . . . . . . . . . . . . 4
`
`Surveys of members of The Conductors
`Guild and of the Music Library Association
`demonstrate the practical consequences of
`Section 514. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
`
`A. The Guild survey revealed the ill effects
`of Section 514 on musical performances
`and education. . . . . . . . . . . . . . . . . . . . . . 7
`
`B. A survey of Music Library Association
`members reveals Section 514’s impact on
`music education, scholarship, and
`preservation.
`. . . . . . . . . . . . . . . . . . . . . 10
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
`
`

`
` ii
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Case
`
`Dam Things from Denmark v. Russ Berrie & Co.,
`Inc.,
`290 F.3d 548 (3d Cir. 2002) . . . . . . . . . . . . . . . . 8
`
`Constitution
`
`United States Constitution, First Amendment . . . 3
`
`Statutes
`
`17 U.S.C. § 104A(h)(6)(C) . . . . . . . . . . . . . . . . . . . . 3
`
`Uruguay Round Agreements Act, Pub. L. No.
`103-465, 108 Stat. 4809 . . . . . . . . . . . . . . . . . . . 2
`
`

`
`1
`
`INTEREST OF AMICI CURIAE
`
`The Conductors Guild is the only music service
`organization devoted exclusively to advancing the art
`of conducting and serving the artistic and professional
`needs of conductors. It has a membership of over
`1,600 members representing all fifty United States
`and more than thirty other countries.1 The Guild’s
`goal is to enhance the professionalism of conductors by
`serving as a clearinghouse for information regarding
`the art and practice of conducting, and to support the
`artistic growth of orchestras, bands, choruses, and
`other conducted ensembles. The Guild also expresses
`the views and opinions of the conducting profession to
`the music community. Many Guild members serve as
`music directors and conductors for smaller orchestras
`that rely on the availability of classical works in the
`public domain for their performances.
`
`The Music Library Association (“MLA”) is the
`professional association for music libraries and
`librarianship in the United States. Founded in 1931,
`it has an international membership of over 800
`librarians, musicians, scholars, educators, and
`members of
`the book and music
`trades.
`Complementing the Association’s national and
`international activities are eleven regional chapters
`that carry out its programs on the local level. The
`
`1 The parties have consented to the filing of this brief.
`
`No counsel for a party authored this brief in whole or in part,
`and no counsel or party made a monetary contribution intended
`to fund the preparation or submission of this brief. No person
`other than amicus curiae, its members, or its counsel made a
`monetary contribution to its preparation or submission.
`
`

`
`2
`
`MLA provides a professional forum for librarians,
`archivists, and others who support and preserve the
`world’s musical heritage.
`
`SUMMARY OF ARGUMENT
`
`This case presents issues of enormous importance
`to the amici. Section 514,2 alone among amendments
`to the Copyright Act, makes previously available
`works of art effectively unavailable for performance or
`scholarly analysis. Permitting Section 514 to remove
`from the public domain many landmark works of
`twentieth-century music—works by Prokofiev,
`Stravinsky, Shostakovich, and others—imposes a
`tremendous financial burden on local and regional
`music organizations and has a debilitating effect on
`music scholarship. Perhaps more important, it also
`risks preventing a new generation of performers and
`music
`lovers from experiencing or studying a
`transformative period in musical innovation.
`
`Some privileged musical organizations in larger
`cities can afford to continue performing the affected
`works. But their musicians and patrons make up a
`tiny fraction of the nation’s musicians and music
`lovers. Most Americans are exposed to the arts not by
`these few wealthy entities, but in their schools and
`local communities. These smaller musical entities face
`limited and
`inflexible budgets, and removing
`important works from the public domain will force
`them to forego performing these works at all. Music
`
`2 “Section 514” refers to the corresponding section of the Uruguay
`Round Agreements Act (“URAA”), Act of Dec. 8, 1994, Pub. L. No.
`103-465, 108 Stat. 4809.
`
`

`
`3
`
`libraries—the great repositories of our musical
`heritage—face similar economic constraints. Section
`514 therefore will harm not only the members of the
`amici organizations, but also millions of music
`students, scholars, and audience members throughout
`the country.
`
`Preventing the performance and study of works
`that have long been in the public domain cannot be
`squared with the First Amendment. This Court
`therefore should reverse the judgment of the United
`States Court of Appeals for the Tenth Circuit.
`
`ARGUMENT
`
`I.
`
`the
`to
`Section 514’s amendment
`Copyright Act retroactively grants
`copyright protection
`to works
`previously in the public domain.
`
`In 1994, Congress enacted the Uruguay Round
`Agreements Act (“URAA”). Section 514 of that Act
`“restores” copyrights in foreign works that were
`formerly in the public domain in the United States for
`one of three specified reasons: failure to comply with
`formalities; lack of subject-matter protection; or lack of
`national eligibility. See 17 U.S.C. § 104A(h)(6)(C).
`
`Congress thus removed from the public domain a
`vast number of important works by foreign composers
`and, for the first time, granted them the protection of
`United States copyright law. These works include
`landmarks of twentieth-century music by the most
`important composers of their day. Works by Sergei
`Prokofiev, Igor Stravinsky, and Dmitri Shostakovich
`are central to the repertoire of any orchestral group
`
`

`
`4
`
`interested in twentieth-century classical music. They
`are also works that any music lover must experience to
`fully appreciate the evolution of classical music over
`the past century.
`
`II.
`
`This grant of restored copyright
`protection has had a direct and
`dramatic effect on orchestras,
`musicians, music libraries, scholars,
`and students.
`
`If an orchestra wishes to perform a work in the
`public domain, it typically has two choices. It can
`purchase the necessary sheet music for its collection,
`or it can rent physical copies of the sheet music. For a
`work subject to copyright protection, however, there is
`typically only one option—renting the sheet music.
`And even if an orchestra purchased sheet music before
`implementation of Section 514, a copyright-protected
`work can be performed only after paying a separate
`performance fee or purchasing a blanket license.
`
`Rental fees for a full orchestration of a copyright-
`protected work can be $800 or more for a single
`performance. Rental costs are even higher for an
`orchestral group that requires a longer rehearsal
`period, such as a student orchestra or an amateur
`group. Rental costs and playing time of a composition
`are often directly related, with
`longer pieces
`commanding a higher fee. Similarly, a piece with more
`instrumental parts, such as Shostakovich’s Symphony
`no. 10, is more expensive to rent than a piece for only
`a few instruments, such as Stravinsky’s Octet. Finally,
`the popularity of a piece also can lead to a higher-than-
`average rental fee.
`
`

`
`5
`
`Rental fees for copyright-protected music impose an
`enormous financial burden on small orchestras. Sheet-
`music rentals are charged on a per-performance basis,
`and the fees are normally three or four times as much
`as buying the sheet music for a public-domain work.
`Because a fee must be paid for each performance, fees
`accumulate season after season, often preventing
`repeated productions. And some publishers prohibit
`renters from duplicating orchestral parts of a
`copyright-protected work, except to replace missing or
`damaged parts with “emergency” copies that must be
`destroyed after the performance.
`
`Restoring copyright protection to previously
`available works demands a new financial investment
`from orchestral groups while undermining the value of
`their previous investments in sheet music, because the
`orchestra now must pay additional performance fees or
`purchase a blanket license for the music that it
`formerly owned outright. The inevitable result is that
`orchestral groups choose not to perform, or to less
`frequently perform, popular canonical works that have
`enthralled audiences for decades.
`
`These new hurdles to performance limit the
`breadth of education for music students and deprive
`audiences of valuable artistic, intellectual, and
`emotional experiences.
` The consequences are
`particularly dire for student groups. Such groups not
`only have limited budgets but also require more
`rehearsal time to prepare for a performance. This
`entails a longer rental period and even higher fees.
`Without the resources to pay those fees, a new
`generation of musicians will receive an incomplete or
`quite costly musical education.
`
`

`
`6
`
`Section 514 has had an equally deleterious effect on
`the world of musical publishing, scholarship, libraries,
`and education. With the passage of the URAA,
`publishers of reprinted music no longer supply scores
`for some of the most important classical works of the
`twentieth century. Most of these works became
`available only for rental, making scores difficult or
`impossible for librarians to obtain and for students to
`study.
` Publishers of excerpt books
`(which
`instrumentalists use to practice common orchestral
`excerpts used in auditions) were likewise forced to
`discontinue publication. Works that had been staples
`of competitions everywhere no longer could be
`performed because libraries could not obtain the
`multiple copies needed to provide each performer with
`an original copy.
` Sound recordings featuring
`“restored” works quickly went out of print. All of these
`developments lessened the ability of music libraries to
`fulfill their educational and public-service missions.
`
`III.
`
`Surveys of members of The Conductors
`Guild and of the Music Library
`Association demonstrate the practical
`consequences of Section 514.
`
`In preparation for this brief, the Conductors Guild
`and the Music Library Association surveyed their
`members to learn whether and how they have been
`affected by copyright restoration under Section 514.
`We discuss the results of each survey below.
`
`

`
`7
`
`A.
`
`The Guild survey revealed the ill
`effects of Section 514 on musical
`performances and education.
`
`The Guild survey revealed that eighty-three
`percent of respondents have a general practice of
`conserving resources by limiting their performance
`and recording of copyrighted works. Seventy percent
`are no longer able to perform works previously in the
`public domain—works performed regularly before the
`passage of Section 514—because those works are now
`under copyright protection. And thirty-seven percent
`own sheet music for these works, but are now required
`to pay performance fees.
`
`The surveyed members provided specific examples
`of how the legal changes have impacted their work.
`One conductor for a chamber ensemble listed a number
`of works by Igor Stravinsky that his group has
`performed in the past, but no longer will perform
`because they are now protected. He explained that the
`fees to perform such a work are at least $300, and that
`his ensemble cannot afford such fees.
`
`A university-orchestra conductor explained that
`high rental fees for music by Shostakovich, Prokofiev,
`and Stravinsky make it impossible for his students to
`perform those works. As he explained, “this has
`severely curtailed the possibilities for the education of
`our music students . . . .” Another conductor for a
`university orchestra noted that his student ensemble
`no longer can perform Prokofiev’s Peter and the Wolf or
`Stravinsky’s Soldier’s Tale, among other titles. The
`loss of Soldier’s Tale is particularly troubling, as it is
`considered an essential piece for conductors training to
`become professionals. He further noted that his
`
`

`
`8
`
`students require an extended rental for a long
`rehearsal cycle. Those fees, he reported, can exceed
`$1,200.
`
`Another respondent feared that Peter and the Wolf,
`which he and others consider an essential work, is in
`danger of becoming a secondary piece as a result of
`these new restrictions. Another explained that these
`are “outstanding works by some of the most artistically
`and historically important composers of the late-19th
`and early-20th centuries. Studying and performing
`these works is a vital part of the training of young
`musicians . . . .”
`
`Another respondent eloquently explained the
`burden
`these restrictions
`impose on smaller
`orchestras:
`
`[S]maller professional or part-time professional
`orchestras and even many of the medium-sized
`cities with full seasons and long and cherished
`reputations are hurting. Against all aesthetic
`reason they are forced [to] find ways to shrink
`their seasons and reduce the size of their full-
`time performing personnel. Introducing a
`further burden on live-music-making ensembles
`is a form of slow suicide.
`
`The survey also revealed how hard it can be to
`determine the copyright status of a given work,
`particularly when that work has been in the public
`domain for decades. Cf. Dam Things from Denmark v.
`Russ Berrie & Co., Inc., 290 F.3d 548, 556-60 (3d Cir.
`2002) (engaging in a complex and extended legal and
`factual analysis to determine whether copyright in a
`doll was “restored” by Section 514). Respondents
`
`

`
`9
`
`expressed uncertainty as to which works have been
`placed back under copyright protection and which have
`not.
` This uncertainty, combined with an
`unwillingness to risk exposure to penalties, will result
`in music not being performed based on speculation
`that it is no longer in the public domain. Put another
`way, Section 514 will have a chilling effect on the
`exercise of the members’ free-speech rights.
`
`The members’ responses not only lament Section
`514’s impact on their own expressive freedom, but also
`reflect a concern for the impact on their audiences’
`exposure to essential works. The director emeritus of
`a regional orchestra explained
`that
`“Russian
`symphonic works are very important to an orchestra’s
`repertoire as well [as] to an educated audience. They
`are absolutely part of an orchestra’s basic library.”
`Another respondent explained that these works “are
`extremely important to the classical-music world and
`[to] the entire world in general. Having them under
`lock and key robs the world of more performances of
`the seminal works of the great Russian composers.”
`
`As these survey results illustrate, the scope of
`copyright protection is a fundamental issue for
`members of the Conductors Guild and for the
`audiences they serve. Section 514 is uniquely
`disruptive because it, alone among amendments to the
`copyright laws, has the effect of making previously
`available works of art effectively unavailable to all but
`the most prominent orchestras and their fortunate
`audiences. For decades, members of the Guild have
`relied on the fact that these works were available in
`the public domain, and their removal has upset those
`decades of reliance.
`
`

`
`10
`
`B.
`
`A survey of Music Library
`Association members reveals
`Section 514’s impact on music
`education, scholarship, and
`preservation.
`
`Fifty-five percent of the respondents in the Music
`Library Association survey reported that they had had
`difficulty in the last ten years acquiring works by
`Soviet-era composers for their patrons. Fifty-eight
`percent knew of cases in which the unavailability of
`these works had hindered their patrons’ performance
`or study of the affected music. And thirty-six percent
`had placed circulation restrictions on works by affected
`composers due to the difficulty of acquiring
`replacements.
`
`include those of major
`The affected works
`composers like Shostakovich, Stravinsky, Prokofiev,
`and Rachmaninoff, as well as works by lesser-known
`composers who are nevertheless of keen interest to
`performers, scholars, and students, including Dmitri
`Kabalevsky, César Antonovich Cui, Aram Ilyich
`Khachaturian, Reinhold Moritzevich Glière, and
`Nikolai Myaskovsky.
`
`Respondents commented on the difficulty of
`acquiring previously public-domain works. “Several
`Soviet-era works are much more difficult to acquire
`now. As an example, [Kabalevsky’s] Colas Breugnon
`Overture, formerly available for sale from [music
`publisher] Kalmus, is now rental-only from [music
`publisher] Schirmer. It is technically available, but
`while we used to be able to acquire this score for our
`students to study the work, that is no longer possible.”
`Another respondent recalled “a specific Shostakovich
`
`

`
`11
`
`chamber work” that was too difficult to acquire “until
`one of our faculty happened to be in Vienna where he
`could purchase it.”
`
`often mentioned—and most deeply
`Most
`regretted—was
`the effect on music students.
`Purchasing works that have been placed back under
`copyright is prohibitively expensive for many young
`musicians. Students auditioning for professional
`orchestras often are asked to play selections from
`works by former Soviet composers. The difficulty of
`acquiring parts and out-of-print excerpt books makes
`it harder to prepare for these auditions.
`
`Prices for scores of restored works are often
`substantially higher than when they were in the public
`domain. For example, Shostakovich’s Preludes and
`Fugues Op. 87, which one university librarian noted
`“was formerly available from Dover [Publications] for
`about $13.00,” now costs $90 for an authorized
`edition.3 As that librarian observed, “[a]side from
`costing libraries, this price puts the publication out of
`reach for most student pianists.” A chamber-orchestra
`director noted that “[t]he lack of readily available
`scores is a huge problem. For many pieces, one can
`only rent scores with parts,[4] which means critics and
`music lovers cannot get access to scores for their own
`
`3 See Hal Leonard Corp., http://www.halleonard.com/
`product/viewproduct.do?itemid=50470230
`(June 17, 2011);
`http://www.halleonard.com/product/viewproduct.do?itemid=
`50489224 (June 17, 2011).
`
`4 “Scores” display in one place all the parts that make up a
`symphonic work, whereas “parts” are instrument-specific. Being
`forced to rent the score with all the parts is more expensive.
`
`

`
`12
`
`study. This also adversely affects young musicians
`and orchestral players.” A university librarian stated:
`“Public domain works are the bread and butter of the
`learning process for young musicians. Restricting
`access to [these works] is detrimental to their ability to
`learn and prepare to be professional musicians. These
`restrictions need to be lifted to assure our students the
`best possible musical preparation they can get.”
`
`Music scholars also feel the effect of Section 514.
`One university librarian remembered “a doctoral
`student who wanted to work on some obscure
`Shostakovich for his dissertation and was unable to
`[do so] due to the confusing state of the copyright.”
`That student ultimately decided to pick another
`subject. Another respondent recalled a student’s
`changing the subject of an honors thesis due to the
`unavailability of a Russian work.
`
`confirmed what The
`MLA members also
`Conductors Guild members said about the impact of
`copyright restoration on musicians. As one respondent
`observed: “We are an orchestra library and the major
`impact for our organization has been rental costs,
`which are generally more expensive than purchasing
`orchestral material. For a nonprofit organization, this
`can be the decisive point when choosing what music is
`programmed.”
`
`Music libraries suffer as well, because their
`effectiveness as research institutions is compromised
`by their inability to acquire important works.
`Accordingly, some libraries have stopped lending
`irreplaceable Russian works to other institutions, or
`even to their own students. Some have placed these
`
`

`
`13
`
`items in “special collections” to which access is tightly
`controlled.
`
`Again, students pay the price for this restricted
`access. A librarian at a university-affiliated music
`conservatory wrote: “For affected works which we
`already own, we now only allow these sets to be used
`by the school’s primary large ensembles. This means
`that none of these works are now available to be
`performed by our student conductors on their degree
`recitals without having to pay prohibitively high rental
`fees.”
`
`Finally, there is the effect of copyright restoration
`on music itself. A librarian at a music conservatory
`warned that, if the affected works become “too
`expensive to buy, no one will explore their performance
`or undertake their recordings. We will curtail
`intellectual curiosity and diminish our cultural
`heritage.”
`
`

`
`14
`
`CONCLUSION
`
`For the foregoing reasons, amici respectfully
`request that the Court reverse the judgment of the
`United States Court of Appeals for the Tenth Circuit.
`
`STEVEN A. HIRSCH
` Counsel of Record
`KEKER & VAN NEST, LLP
`710 Sansome Street
`San Francisco, CA 94111
`(415) 391-5400
`SHirsch@kvn.com
`Counsel for Amici Curiae
`The Conductors Guild and
`The Music Library Association
`
`June 20, 2011

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