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pg1067
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Re: Copyright?
« Reply #10 on: Dec 19th, 2006, 12:16pm »
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The other responses have covered the legal issues, but this ultimately isn't a legal question.  Whether or not, if a lawsuit were filed, a court would declare this to be a fair use, it is entirely within the discretion of the yearbook committee to permit or not permit this.
 
Also, Ms. Womack did not write the song, so neither she nor her representatives can consent to your use of the lyrics.  The song was written by Mark Sanders and Tia Sillers, and the copyright is jointly owned by Ensign Music Corporation, Choice is Tragic Music, MCA Music Publishing and Soda Creek Songs (see copyright registration #PA-981-302).
 
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JSonnabend
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Re: Copyright?
« Reply #11 on: Dec 19th, 2006, 2:51pm »
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Quote:
The other responses have covered the legal issues, but this ultimately isn't a legal question.  Whether or not, if a lawsuit were filed, a court would declare this to be a fair use, it is entirely within the discretion of the yearbook committee to permit or not permit this.

Right, unless, of course, the yearbook committee is concerned about legal liability, in which case convincing them that the use is likely fair use would achieve the OP's goals, no?  That's why I gave the advice I gave.  It sounds to me like your advice is "give up, they're allowed to do what they're doing."  That may be true, but that doesn't help.
 
There's no reason to contact the rights holder(s) if you're comfortable that the use is "fair".
 
- Jeff
« Last Edit: Dec 19th, 2006, 2:52pm by JSonnabend » IP Logged

SonnabendLaw
Intellectual Property and Technology Law
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pg1067
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Re: Copyright?
« Reply #12 on: Dec 20th, 2006, 2:03pm »
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on Dec 19th, 2006, 2:51pm, JSonnabend wrote:

It sounds to me like your advice is "give up, they're allowed to do what they're doing."  That may be true, but that doesn't help.

 
You're quite a piece of work!  Why do you find it necessary to be beligerent and argumentative?
 
First of all, I gave no advice.  It would be both irresponsible and unethical for a lawyer to give advice to anonymous strangers on an Internet message board.  Any reasonable person reading my post would understand that I was doing nothing more than explaining that, ultimately, being right about the legal issue is irrelevant if the yearbook committee abjectly refuses to publish the lyrics.
 
I see nothing wrong with your "advice," and I never suggested that I did, so mellow the heck out.  Angry
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JSonnabend
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Re: Copyright?
« Reply #13 on: Dec 20th, 2006, 2:16pm »
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I apologize if you find me belligerent or argumentative.  That's certainly not my intent.  
 
When you said that this wasn't a legal issue and that the yearbook committee was in the right, I understood you to say tacitly "the advice you've received is besides the point."  
 
The fact of the matter is, the advice is not besides the point.  It attempted to address the problem by giving the OP the legal foundation for discussions with the yearbook committee.  If she could convince the committee that their fears of copyright liability were ill-founded, she could give her daughter the present she'd made.
 
I try to help people here within the ethical boundaries inherent in a public forum.  I assume that's your goal as well.  How would your (non-)advice do that?  Was there some way to read it other than "give up"?
 
I think it's great to have more attorneys participate in these forums, and I welcome each and every one.  I won't refrain from calling them out when I think they're providing bad (non-)advice, however.
 
- Jeff
« Last Edit: Dec 20th, 2006, 2:17pm by JSonnabend » IP Logged

SonnabendLaw
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pg1067
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Re: Copyright?
« Reply #14 on: Dec 21st, 2006, 9:39am »
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For the benefit of the original poster, let me clarify my opinion.
 
1. Unless it is a fair use, what you propose to do is unquestionably copyright infringement unless you have consent from the copyright owner.
 
2. The fair use test is somewhat amorphous, and it is difficult to form any solid conclusions.  In almost every case, there are arguments on both sides.  Off the top of my head, it seems that you are clearly on the wrong side of two of the four prongs of the test (the work is creative in nature, and you propose to reproduce it in its entirety), but almost certainly on the right side of the other two prongs (your proposed use is non-commercial and likely would not affect the market for the original or licensed derivatives).  By the way, giving credit (either to Ms. Womack or the songwriters) is irrelevant.
 
3. Irrespective of the legal analysis of the situation, whether or not to allow this is ENTIRELY within the discretion of the yearbook committee.  In other words, even if, from a legal point of view, there was no question that you were in the right, the committee could still deny permission.
 
4. I am not advising you or even suggesting what you should do.  You certainly can seek to persuade the committee that there is no legal risk, and you may well succeed in doing so.  Of course, that may require that you familiarize yourself with the fair use test so that you can make a persuasive argument.
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