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Nov 27th 2006

guitar tablature is copyright infringement?

recently, while looking for some help with a few songs i’m trying to learn to play on the guitar, i discovered something very sad. it appears the NMPA and the MPA have threatened two of my favorite tablature site, guitartabs.cc and olga.net (and probably others) claiming their guitar tablature archives infringe on numerous copyrights by posting users’ interpretations of the guitar parts of popular songs. the sites have removed the offending content pending the outcome of the disputes.

if you are not familiar with guitar tablature, check out the intro section to the famous led zeppelin song, stairway to heaven, tabbed at another site:

stairway-intro.jpg

if you saw this on the street, you’d know what it was right away, wouldn’t you?

< / sarcasm off >

this is what a tabber does when he wants to help another guitarist learn to play a song. he listens to it, experiments with it, and provides his own suggestions of how to mimic the sounds of the lead guitar.

compare this to the following scenario: you taste a delicious dish at a restaurant. you go home and try out various ingredient combinations in your own kitchen until you create (what you think is) the taste you tasted in the restaurant. if you then post this recipe on the web, are you posting their recipe, or yours?

wait. never mind that. with guitar tabs, you aren’t even posting the whole recipe. you’re posting one-third or one-fifth of the recipe. you haven’t mentioned the vocals, percussion, keyboards, or bass. you can’t represent the rhythm of the song, or much else beyond the tabber’s best guess at what frets and strings to touch and in what order. having the guitar tablature alone, without access to the artist’s CD will get a guitarist next to nowhere.

the first thing that comes to mind after the accusation of copyright infringement is the fair use exception.

Fair use, which is a defense to copyright infringement, allows scholars, researchers and others to use protected works for socially productive purposes without seeking permission. Arguably, one of the most difficult areas of copyright law, clients often ask “What constitutes fair use?” What follows is a checklist of points to remember. Unfortunately, fair use is impossible to quantify. Nonetheless, this checklist should help you understand the delicate balancing that fair use requires.

1. Fair use is not a simple test, but a delicate balancing of interests. Sometimes even a small (but important) portion borrowed from a larger work may constitute copyright infringement.

ok. i concede the point that the guitar part is an important portion of the larger work. it could potentially violate the fair use. but i believe that the majority of the other factors weigh heavily against precluding the fair use exception in guitar tablature cases.

2. Four factors must be balanced in each case to determine whether a specific use is fair:

*ONE* The purposes and character of the use, including whether the use is primarily
commercial in nature;

tablature sites never publish a tab without the limiting disclaimer that the tab may only be used for educational purposes and not commercially. now, if dave matthews used tablature to recreate his popular version of jimi hendrix’ “all along the watchtower”, which matthews has used prominently in his very profitable live concerts, then he could not invoke the fair use exception. but somehow i doubt talented musicians like dave matthews are using some snotty-nosed kid’s interpretation of hendrix to prepare for their performances. this factor favors the tabbers.

*TWO* The nature of the copyrighted work being borrowed from;

the work being borrowed from is a track of music or a CD or a music video that has been reduced to numbers in a text file (see the zeppelin example, above). its use is not for profit but for educational purposes.

*THREE* The amount and importance of the portion used in relation to the copyrighted
work as a whole;

here it would be useful to see what caselaw defines as an “important portion” and what is a “whole work” as far as music goes. i haven’t taken any intellectual property courses, and i don’t know.

*FOUR* The effect on the potential market or value of the copyrighted work.

hardly any. it would be essential to see some evidence here, but one would look for the significance in the market for MP3s, CDs, videos, t-shirts, concert tickets, and the like when compared with the market for licensed tablature books and sheet music. my estimate: tablature would be outpaced several hundred times by the other music money-earners, even if no free tablature sites existed. this is because there are always going to be millions upon million more listeners than guitarists.

3. While fair use favors criticism, comment, news reporting, teaching, scholarship and research, these uses are not automatically deemed fair uses. Only a court can determine with authority whether a particular use is a fair use.

this doesn’t say anything. just that an educational use is not automatically a fair use. ok, duh.

4. Quoting from unpublished materials exposes you to greater risk than quoting from published materials. While not determinative in and of itself, if a work is unpublished, it weighs against fair use.

this factor favors tabbers. the works are all published and playing all over the radio. this is why people want to learn to play them themselves.

5. Fact-based works, which can be expressed in limited ways, receive less protection than fanciful works that can be expressed in a multitude of ways.

this factor favors tabbers. music is an artistic work, and sounds can be imitated in a multitude of ways. tabbers often express songs very different, which is why one tablature site may feature a dozen different tab versions of the same song. there are thousands of guitar tabs out there for songs originally composed for the piano. there is virtually no limit to musical expression.

6. Visual works enjoy a high degree of protection under copyright law.

this factor favors the tabbers. the tabbers are not copying licensed tablature books, they are interpreting music. music is an auditory, not a visual, work.

7. Synthesizing facts in your own words is better than verbatim copying. However, close paraphrasing may constitute copyright infringement if done extensively.

tablature is, at best, synthesizing information. but, as noted in #5 above, music is not a “fact-based” work; it is artistic and open to interpretation, so this question doesn’t really apply at all.

8. Never copy more of a copyrighted work than is necessary to make your point understood. The more you borrow, the less likely it will be considered fair use.

advice to tabbers: don’t make a music CD, complete with guitar, drums, vocals, keyboards, and bass, sell it for the same price as the real artist’s CD, and then say “see, that’s what the song sounds like! interpreting one guitar part of a larger song on paper is not more than is necessary, and it is actually very minimal.

9. Do not take the “heart” of the work you’re copying from. If what you’ve copied is important to the original, it will weigh against finding fair use.

this factor seems of little use in practice. why would someone take anything from anything if it wasn’t the main point or “heart” of the work? why would i quote a writer of a book that supports my point of view and then try to obscure that point of view by only quoting tangential side items? what good is quoting someone if you can’t quote his topic or concluding sentence (each of which presumably gives the “heart” of the work)? i would be interested to see how this factor is applied in caselaw.

10. Do not quote from a copyrighted work simply to “enliven” your text. Make certain you comment upon the material you borrow or can otherwise justify its use.

translation for tabbers: write a gnarly guitar solo into the middle of the tab.

11. Never copy something to avoid paying permission fees, or to avoid creating something on your own.

exactly. tablature is something artists have created on their own, to resemble a copyrighted work. they are not copying licensed books and distributing the xeroxed pages. they are not copying MP3s or CDs and sharing them. this factor favors the tabbers.

12. Lack of credit, or improper credit, weighs against finding fair use. However, giving someone appropriate credit, will not, alone transform a “foul” use into a “fair use.”

again, this factor tell us nothing. except that factor #12 doesn’t weigh against the tabbers. the very essence of tablature on the internet is that the creator is giving credit to the artist whose work he is attempting to imitate. he says, “hi, this is my attempt at tabbing ‘under the bridge’ by the red hot chili peppers.” he never says, “hi, here’s a song i wrote myself. it sounds a lot like a famous RHCP song you might have heard, but don’t be fooled, i’m a genius and i thought it up myself on my casio keyboard. now pay me money.”

13. Being a non-profit educational institution does not let you off the hook. Even non-commercial users can be sued if the use exceeds the bounds of fair use.

this is a lot like #3 above, but it refers to the user, not the use. even non-commercial and educational users can overstep the fair use exception.

14. Don’t compete with the work you are quoting or copying from. If the use diminishes the market for the copyrighted work (or portions of it), including revenues from licensing fees, it is probably not a fair use.

again, we should look at cases that have interpreted this standard and find where they draw the line. does tablature of questionable quality found online diminish the market for complete and accurate interpretations of the copyrighted work? perhaps somewhat. does it diminish the market for licensing of copyright to create music books? yeah, maybe. if so, this is one of the few troubling factors for tabbers.

the cruelty of this factor appears to be this: even if six year-old timmy could never play that song but for buying the whole $34.95 metallica song book, then he will never be able to play that song. sucks for him. guess he’ll just have to spend his time making bombs in the garage (instead of music) and grow up to be a psychopathic killer. thanks MPA!

[all the fair use factors come from http://copylaw.com/new_articles/fairuse.html]

again, looking to how courts have weighed these factors in practice is the key. as of 11/26/06, the lexis and westlaw copyright databases each return 0 documents for searches for the phrase “guitar tablature”, so it appears to be an open question. courts will probably look to make analogies to other borderline copyright infringement / fair use situations.

i think it would be possible for guitar tablature to fit under the “fair use” exception. people reading the tabs are not performing the songs for compensation (if they are good enough to be performing, they probably have the skill to figure out the tablature themselves, without the aid of a website). if tablature sites go down, a tremendous source of music scholarship and teaching goes with it. i have learned to play hundreds of songs through tablature. without it, i could have never had this experience of playing an instrument. guitar tablature only provides a representation of the guitar parts of songs, and in some cases the lyrics. in comparison to the market for CDs, concert tickets, mp3s, band t-shirts, etc, the market for sheet music of popular artists is very small. few of the people who frequent tablature sites could even begin to read sheet music, and most sheet music lacks the personal instructive notes that tabbers often provide.

there is a forum set up at guitartabs.cc, where people are venting. one of the more humorous comments, highlighting the frustration guitarists feel at being told they can no longer teach each other, reads:

You know those commercials showing someone drinking a can of coke? Yeah when they want to drink it, they pull up on the back of the tab until the can opens and then they push the tab back down.

I’ll be expecting a call from a lawyer soon.

please read the letter from guitartabs at guitartabs.cc. then please visit MuSATO and sign the petition.

6 Responses to “guitar tablature is copyright infringement?”

  1. I’m not familiar with the list of 14 points, but the basic four-part fair use analysis is pretty standard. It seems that some of those 14 points are normally incorporated in the four-part fair use test. Here’s how I would look at it:

    1. Purpose of the Use: Probably non-commercial, which favors tabbers. Is it transformative? Arguably so, which would also favor tabbers.

    2. Nature of the Work: The works were already published, which usually leads to a less rigorous level of protection. The works were almost certainly creative works, however, which would lead to a higher standard of protection.

    3. Amount or Substantiality of the Use: This is actually interesting. The tabs cover all the song, but only one instrument’s part. Additionally, the tabs may not even be accurate — many tabs are simply approximations of the original work. This would be a very interesting issue if such a case were to go to trial.

    4. Effect on the Market: Here, the “market” isn’t the market for the recording of the song, but a similar product, such as sheet music or commercially-sold guitar tabs. I’m not sure how a court would hold on the issue (although I have a pretty good guess if it arose in the 9th Circuit), but I think there is a fairly good argument that the tabs have a negative effect on the market for commercially-sold guitar tabs.

    It’s probably not a good idea for music labels to go after online tab sites, for the same reason that it’s a bad idea to sue music downloaders: it attacks their fan base and their consumers. But I can’t say that their case will be easily dismissed. The issue of fair use would probably survive summary judgment. However, guitar tabs might not even constitute a copyright infringement in the first place, preventing the tab sites from even having to argue fair use. It’s a close case, and I’d be very interested to see how it is resolved if such a case were ever to go to trial.

  2. peter, thanks for your analysis.

    in the end it could come down to (keep in mind i have no background in IP law) what EXACTLY the court decides is the intellectual property being infringed upon / copied. if the courts say the tabbers are “copying” the musicians’ auditory creation, then the MPA & NMPA should be in its weakest position. see the cook / recipe example, above.

    but if a court decides that the material being infringed upon is the published sheet music itself, then (as the MPA / NMPA attorneys claim in their scary letter) the impact of tablature sites would, as you say, certainly be found to be significant. no wonder the scary letter defines the copyrighted material in the narrowest possible sense:

    printed sheet music and guitar tablature products for educational, concert, and recreational purposes.

    musicians do not (generally) write songs on paper, at least at first. their traditional contribution to the world is the CD, MP3, or music video. therefore, i am at a loss as to how an uncompensated tabber at the online guitar archive can be infringing on anything by posting a written work of his own creation that, he asserts, assists a guitarist in making sounds resembling a small (albeit significant) portion of the famous artist’s auditory work.

    i think this has got to be a unique (or practically unique) scenario: the alleged copyright violation is a work in a completely different form than the original material.

    however, i realize that the copyright is a broad reservation that encompasses pretty much every possible avenue for exploiting one’s intellectual creation.

    so, maybe the tabbers are dead in the water.

  3. This is, of course, a legal gray area, but very fascinating. One thing to keep in mind is that there is a separate copyright for the written composition and the actual performance. If tabbers violate copyright, it is a violation of the composition copyright, not the performance right (which is much more limited). As I indicated in the standard Fair Use Analysis above, there are points for and against tabbing as fair use. Unfortunately, as I review the two tests for infringement (one set out in Arnstein v. Porter and one in Krofft v. McDonald’s), tabbing probably constitutes infringement. So in the event of a lawsuit, it will probably come down to fair use. I would certainly like to see tabbing considered fair use, but I don’t know how it will come out.

    The good news is that copyright isn’t nearly as comprehensive as we assume most of the time. It’s supposed to balance the interests of the artists with the public. And tabbing likely has good supporting public policy arguments.

    Thanks for writing about the issue. It’s been interesting to think about.

  4. erin

    i actually just wrote an article on this, arguing that guitar tablature is not subject to copyright protection because of the idea/expression dichotomy, and if it is, it’s fair use. I completely agree with you. It’s good to see I’m not crazy for thinking these things…

  5. Maybe have a look at tabforge.com – it’s a free online guitar bass & drum tab archive could be really useful to find the tablature you need 😉

  6. […] guitar tablature is copyright infringement? (i believe creators of tablature can use the fair use defense. someone else suggests there is no infringement in the first place because of the idea / expression dichotomy.) […]