Is copying out of print music illegal?

[emilio g]

There's A LOT of great music out there that's endangered because its going out of print. I've been going nuts trying to get a copy of "Alone" by Anders Jormin, as well as a number of Red Mitchell albums.

But now I'm wondering...is making copies of an album legal once a company decides its not profitable to keep printing an album?

How does this work from a legal perspective?

[zeytoun]

Legally, you'd have to confirm with the publisher. If they confirm that it is truly out of print, then you could make copies, though not for resale, obviously.

[Febs]

In the United States, Section 106 of the Copyright Act gives the copyright holder a number of exclusive rights, one of which is the right "to reproduce the work in copies or phonorecords." Copyrighted material does not go into the public domain just because the copyright holder has chosen not to publish the material; absent any other exception to the exclusive rights granted by Section 106, the copyright holder still retains the exclusive right to copy the material regardless of whether that material is published or not.

With that said, the fact that a work is out of publication may be relevant to determining whether a particular use of the copyrighted materials falls within the "fair use" exception to the exclusive rights granted in Section 106. There are four factors relevant to determining whether something is fair use:

(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.

Whether a particular copyrighted work is in print would impact the fourth prong of the test for fair use.

[emilio g]

I'll have to investigate into this a little more.

I was thinking about it and I have a few albums on CD and LP that are out of print and often I'll make a copy for a friend who can't find it anywhere.

The question came up because I'm going to be putting up a website for myself soon and I thought it would be really hip to have a section just for rare and out of print stuff. (there would probably be a section within that for Red Mitchell alone...)

[bobalew]

Out-of-print does not mean in the public domain. Be careful! The copyright holder should be consulted in writing, and permissions usually come with some limitations.

[EggyToast]

If you put it up on a website, you are distributing it. Anyone who accesses that website could download the material, which will likely result in a take-down notice from the copyright holder (which just means you have to remove the material).

Letting a friend borrow an out-of-print or hard-to-find recording or make a copy of rare sheet music is technically illegal but no one really cares. You're not making any money, you're lending it to one person, etc.

Copyright is a tool; it's not something you should be afraid of. That being said, the path to not being afraid of it is understanding what it is -- it's the right to control the publication of the material. And publication means distributing the material to the public. That's why no one cares when you let your friend borrow a book, or burn a CD for a friend -- you're barely scratching the surface of "the public." But putting something up on a website, where potentially the whole world could find it? Yeah, that's why you'd likely get asked to take the material down.

Not that the exercise can't prove useful -- posting the material can show the copyright holder that there's still demand out there, and typically the worst that happens is that you get asked to take it down. Not that I'm advocating breaking copyright law; just informing you what the deal is with copyright.