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FAQ
(Copyright / Licensing)


Attention! Legal Disclaimer

DISCLAIMER: The Band Support Manager is not a lawyer.  Please seek authorized legal advice from your chain of command (JAG, GC, etc.) for any/all copyright and financial situations.  The following information is strictly for guidance from past experience that may/may not work for your specific situation.  Your situation may vary.  Contact the Band Support Manager for general copyright/licensing needs.  This FAQ will be a living document. 

TIP: click "control-F" to find key words for your topic throughout the FAQ.  Similar terms show up in multiple areas that may be applicable to your needs. 



Guide

New Info

10 April 23 - Both FB and YT original owners have the option to add users to their “whitelist.”  It should now be a stated policy when any AF band requests permission (or paying for a license), the requester should also require a provision in the agreement to be included on the owner’s YT/FB whitelist.  This protects them against strikes or takedowns from the DSP site that otherwise might be erroneously struck down (muted, removed, strike, etc.) automatically via software algorithms (Audible Magic, ContentID).  I cannot guarantee it will protect from all algorithm issues, but it’s a step in the right direction. 

Live Performance

Q.  For concerts (for example rock band concerts), if we want to play copyrighted music as “pre-show” music over the speakers, do we need to have a license to do so? 
A. Pre-concert music = Gray area. If protected music is played over a loudspeaker, that falls into getting a performance license from a PRO.  BUT...if you are playing a protected piece that you recorded (I.e., an AF band CD), then typically YES, it’s authorized without penalty. If you are performing it pregame for a live streaming event online, then be cautious.  YouTube/Facebook may shut you down.  Advise the CC or small group NCOIC to play public domain music. It’s the easiest and safest bet. Just depends on the situation.  That’s another deep dive with caveats.  There are times when it’s allowed.  I.e. General’s back yard with a few guests, before a retirement ceremony in sqd, etc.) 

Q. With regard to performing covers, we know not to change the lyrics, melody, and “intent” of the piece. However, if we want to vamp a solo section or take it back to the A section – and this isn’t how the original went – are we breaking the law? 
A. It depends.  How I define extensive edits or changes compared to the original writer is up for debate…. constantly.  The easy answer from my research is: get a license if you’re worried, or get permission from the publisher/owner (in writing!) to perform a piece different from original.  (How “different” is only up to the copyright owner).  Only the courts can decide how much was changed from the original to dictate infringement vs. playing a straight cover under Title 17.  During a live performance, it’s still up for interpretation, which would then potentially fall under fair use.   Where I would have stronger reservation is during a video or performing on TV (recorded or live).  When your audience expands to a very large pool, then it’s best to be cautious.  

Q. Can we read a poem during a live gig. 
A. Poems are literary works.  Protected.  Gotta get permission.  Either ask original writer (in writing! not verbal!) or publisher (may charge for license).  Fair use could be used in this instance, too.  That’s a risk to assess.  Depends on issues such as: how much the poem is read aloud during the performance, was it used for an educational purpose, etc. 

Q. Are we breaking a law in these 2 live stream scenarios? 

  • 1 camera only 
  • 2+ cameras with talking, scripting, producer, etc. 

A. Livestream is acceptable and considered a live performance.  No license required. *Note: Make sure it is not being recorded for broadcasting later. 

Q. Can we perform/record/Video a foreign country’s anthem?   
A. Typically, yes, but...you need to check if it’s protected by international copyright (WIPO/Berne convention).  Not always a perfect source, but Wikipedia can help guide research. 

A2. same thing for general foreign songs…..get permission and do some research.  If it’s a popular song that’s current, more than likely it requires a license to record.  And….Title 17 doesn’t have the same rights in other countries, so performing live “could” require a license, but this seems to be extremely rare.  I have not seen a situation where this has been required.  Easiest answer is “try to perform US songs on foreign soil” until you have local country law approval to perform a local song. 

Q. can we play a cover of a cover?   
A. Yes, the cover of a cover (or a published arrangement of a cover) is the same permission as the original.  If it’s already in ASCAP/BMI/SESAC (PROs), then it’s covered under Title 17.  Recording/AV still requires license. 

Q. Who’s responsible for knowing copyright at a gig?  The band or the videographer/PA? 
A. It’s ultimately the person/entity who posts the content.  And…it doesn’t matter (mostly) where it’s posted, it still needs approval in some form (email, license, text, written with signature, etc.) 

*Note: if a recording (A/V) is for internal private use, then getting approval or license is not required.  That’s covered under Title 17 for private use.   

Q. What can/can’t we do with Space Force Song (SF song/Semper Supra)? 
A. Use in any fashion that supports the mission with the exception of 1 area. dissemination of sheet music.  Please do not provide sheet music to non-DoD entities: HS bands, colleges, community bands/groups, etc. They can apply for a license through the website. 

Q. Do we need a performance license to play live from ASCAP/BMI/SESAC?  What if the live performance has alternative parts....but still live performance? 
A. No.  You don't need a performance license.  Title 17, section 104 specifies that anyone who isn't charging (or making money) may perform protected music in a public setting. This is exactly what military bands do.  Hence, no performance license needed.

Q. Are we required to get licensing for air shows on base?  We've been told licensing is required by the International Council of Air Shows (ICAS).
A. Typically, no additional licensing is needed.  DoD bands are generally covered under Fair Use and agreements with the PROs for those live shows.  If the producer/director of the show wants to broadcast live or record for later, they must procure a synch license.  The bands generally do not need to provide licensing prior to performance.  Keep in mind, we do not currently have agreements with GMR music publishers, therefore, be cautious on setlists that contain their music.  A list of artists affiliated with GMR can be found at: GlobalMusicRights.com

TV/Radio

Q. On TDY. Requested to perform on TV or radio. Do we need a license? 
A. Live gig (nightly news, on location, etc.), you are covered by performance rights.  If the station records for broadcast later, it's on them to procure a license.  Typically, the radio/TV station should already have rights to the PROs and it’s their responsibility most of the time.  Alternative situation: if you seek out (solicit) the station for broadcasting, more than likely you’ll need to provide the license. 

Q. Requested by radio station to play unpublished recordings.  What do I need?  What does radio station need?
A. You're authorized to record a song without releasing it (publishing it), but as soon as you want to, you have to get permission. Even though radio stations and tv stations typically have to play for these rights as the venue, because you recorded an unpublished derivative (and currently non-approved version), you need to get permission before giving to radio stations to play.  You would get a mechanical license first, then the radio station would pay the performance license fees to the PROs (ASCAP, BMI, SESAC) after they played your recording.

Recording/Cds/DSPs

Q. Making a CD.  Using Commissioned pieces written directly for band.  
A.  Still need approval (or mech license) from the composer to create the recording. (Typically, it’s already stated in the agreement you created with the composer) 

Q. What’s the best way to get recordings online?  Or archived? 
A. AFPAA can upload and archive the recordings directly to the af.mil website.  The website can maintain them indefinitely.  Plus, you can maintain control/ownership of those recordings.  In addition, DSPs will hopefully be available to stream music across popular platforms….TBA 

Q. Can we record and upload to Spotify once it’s up and running? 
A. Almost.  AFPAA is working on an agreement to upload the entire AF catalog for public use, and to include new recordings as they become available.  At this point, send new recordings to AFPAA for uploading on the website and disseminating via links to those that are interested.  CDs are still an option to hand out to patrons locally. 

Q. Can we record without having a license to distribute? 
A. Yes!  You can still record any protected song before it’s distributed.  You cannot distribute a protected song without approval. 

Videos/Social Media

Q. YouTube.  What’s the skinny on copyright? 
A. Whenever you get permission from a composer/publisher, please ask them to include you on their YouTube “whitelist”. This hopefully ensures you don’t get kicked off for uploading the music.  Although, nothing is guaranteed with ContentID.  We all bear the unknown outcome of that software.  Facebook doesn’t have anything that I’m aware of at this moment like YouTube. 

Q. Last min request for performance recording via private YouTube link. 
A. Still need a sync license for a recording.  BUT….if you play a live streaming gig, you’re covered. 

Q. We found a recording/vid of Max Impact of their own song on YouTube.  Can we use it? 
A. It’s public domain. Created by gov.  Open to public.  Would be nice for a courtesy notice/request so we can track if someone is using for appropriate or inappropriate use.  If inappropriate, we should be absolved of any responsibility. 

Q. YouTube covers all our uploads with their license agreements.  They didn’t take ours down.  We’re covered, right? 
A. Not necessarily.  If you play a protected song (whether registered or not), it’s on you to get permission first (either buy a sync or get permission from publisher/owner).  YT only provides means to upload.  It doesn’t cover any permissions to upload someone else’s creation.  The owner sets the permission in their accounts if others can upload derivatives and copies (covers) of their music.  It’s a case-by-case situation. 

*Gee Whiz: YouTube won’t come after you for infringement even though it looks like that if you get a claim on your video.  Only the copyright owner can do that….and there are many steps to requesting the takedown request before it happens with punishment.  The owner has to search you out, then file a request, upload their personal contact info, then go to YT court to see it through. 

Q. We performed/arranged/uploaded content.  But, we had a miscommunication about getting license first.  Can we get a license after the fact? 
A. Yes, you can.  Please pursue all available means to secure a license.  Put safeguards in place to prevent the mishap/oversight in future.  This isn’t a guarantee that a penalty may be assessed from other angles, but in past experiences, publishers and owners are usually understanding and accommodating.   

Q. YT took down/muted/put ads/claimed my video for alleged infringement, but I have a license.   
A. This is a symptom of the ContentID algorithm on YouTube.  It isn’t a blanket accusation of infringement.  Go to YT video manager section and dispute the claim.  YT has no ability to confirm prior to your upload if you got a license or not.  But, they claim to respond quickly to disputes and uploading proof of license. (evidence).  This is unfortunately the only way to prove authority. 

Q. For the music.af.mil website, do you know why “we cannot post anything that might be copyright protected – even if licensing was secured at initial release?”  Thoughts: I know that our HIB videos can’t be used because we only procured the licensing for 30 days on TV and social media, but if we do have videos that have procured licensing for websites, why can’t we offer those?   
A. There are no restrictions if licensing was obtained prior to upload.  YouTube/Facebook may still block (if posted there), unless the licensee was able to procure a "whitelist" exemption by the publisher so the video wouldn't be kicked off YouTube.  Posting a video on their own website (with valid license) is completely fine per the terms of the contract.  It's up to the website manager to know when to remove the video after the license has expired.  

Q. Can I show YT/FB videos (or any protected content) to a gathering of colleagues without permission?  Not virtual. All in person. 
A. BLUF: I think it's acceptable to show the videos.  This is not considered infringement since you are utilizing content in a small/personal setting per copyright law. Plus, you are controlling the audience that is in attendance and not showing to everyone in an uncontrolled public setting. 

Deeper dive: The issue at hand would fall under a "public performance" license inquiry.  But, Fair Use can be utilized in this setting without needing a public performance license.  Showing protected content to a "small group" or educational/analysis setting supports criteria #1: Purpose and Character.  Fair Use #1 is defined as, "...original works may be used by others for activities such as criticism, comment, news reporting, teaching, scholarship and research." (Title 17, section 107)  I would argue this falls into the fair use category as long as the other criteria are met. 

Extra deep dive:  

Justification from my seat: (Fair Use Criteria) 

  • All the videos are already available to the public via their DSTs (Digital Streaming Service) and have not been removed via software algorithms
  • Since they're already publicly available, showing them at a gathering doesn't seem to violate any unforeseen laws/policies 
  • permission/licenses were likely granted for the original recording (regardless of age)
  • no revenue generated for the AF 
  • no strikes or DMCA take down requests to user’s accounts (or you wouldn't be able to see them in the first place) 
  • videos shown for potential discussion/training/research/comment 
  • closed/select audience 
  • no market infliction to the original owners by the AF (hold harmless) 

Additional info: The bands should police their licensing contracts for "end of life" time frame to remove their video(s) at the appropriate time.  But, even if a band forgets to remove, YouTube and Facebook have multiple options to allow protected videos to live in perpetuity. (E.g., placing ads, doing nothing or until the copyright owner requests a takedown.)  After more research, both FB and YT original owners have the option to add users to their “whitelist.”  It should now be a stated policy when any AF band requests permission (or paying for a license), the requester should also require a provision in the contract to be included on the owner’s YT/FB whitelist.  This protects them against strikes or takedowns from the DSP site that otherwise might be erroneously struck down (muted, removed, strike, etc.) automatically via software algorithms (Audible Magic, ContentID). 

Q. We want to make a sizzle reel.  It's only 15-30 seconds.  Do I still need a license for any social media site?
A. It depends.  All protected content is protected no matter how much you use for your video.  There are stipulations though: you would have to be using the main melody (or clearly recognizable "hook" of the song) for copyright to play a significant role.  Chords and chord progressions are not protected.  Are you making short videos for specific audiences that you control?  Are you directly controlling the distribution?  If you answer No to those questions, you need a license.  If you are controlling all aspects of the reel/video to a controlled audience, and do not disseminate to the open public, you typically will not need a license.  Remember, fair use supports the 4 criteria and military bands are typically covered by 2 already.  Even better, if you are making sizzle reels for education purposes, that aspect goes far into fair use without needing a license.

Arranging/Composing

Q. We wrote an arrangement of a pop song. Can we play/use it? 
A. Need to get arranging license from the publisher/owner before performing in public. But, if it’s a straight cover of the song, then no arrangement license is needed.  The arrangement must be similar in nature: Original tune for 4 rock band members, but you adapt for 5 members).  If you are arranging for a group that’s not in the vein of the original (Rock to CB, Jazz to WW quintet, etc.) then you need an arranging license.  If recording the arrangement, then both arranging license and mechanical license is needed.   Putting on YT or FB, then add sync license as well. 

Q. We hired a civilian for arranging a specific copyright protected song. Who’s mandated to get approval? 
A. Typically, the hiring authority (the AF Band leadership) is responsible for the arrangement. They paid for it, they are using it, they’re responsible for legalities.  If it’s drastically different (derivative) from original content (heavily changed melody, more modifications, added new material), then the arranger should get approval first.  The original content is protected by the original composer whereas the new material added is protected under the arranger’s pen.  But, if the song was changed to the point where it isn’t the focus anymore - called transformative (e.g., speech over the music, video focused instead of music focused and music sounds different, etc.) then approval is typically not required under copyright statute. It could be considered fair use in some circumstances.  This isn’t a blanket approval to make every piece transformative.  Many more caveats and points of contention to deal with first. 

Q.  When you have a pop chart, as long as we don’t change the lyrics, melody, etc., the pop ensemble can perform the piece because it is a cover. What if the pop ensemble wants to perform an arrangement of a cover? For example, let’s say Post-Modern Jukebox has a rendition of a pop song that the jazz ensemble wants to perform. Would that constitute as a “cover”? Or would the jazz ensemble need to get permission from Post-Modern Jukebox to perform the arrangement of the cover? If it is no longer a cover, are you paying both the original copyright holder AND the arranger of the new chart? Or just the original copyright holder? 
A. Typically, you need to get permission for the derivative work.  Derivative work simply means a derivative of a copyrighted work.  Hence, making an arrangement of PMJ constitutes a derivative of that specific piece.  It does not necessarily mean you need permission from the original creator/owner.  It gets a little deep in the weeds, but you must verify if the derivative that you are creating your arrangement from has already been given authority to be a derivative (I.e., PMJ “never” got approval to make their version in the first place”).  If not, then you must get permission from the original owner to create a derivative.  The derivative must be different enough to warrant being a derivative and not a straight translation into your group.  (Not just small changes like tempo or key signature and you didn’t drastically change from one style to another).  If your new piece contains large changes in the structure of the piece, (modified melody, added sections, different instrumentation) then it’s considered a derivative and permission must be gained from the owner you are basing the song from.  Further research must be done if permission is needed to perform a derivative work in live performance under current law and permission from the PROs.   

Q. I wrote music on my own time. I want the AF Band to play it and record it.  Is this legal? 
A. Some parts are, and some aren’t. You as the composer should publish and get it protected in your personal capacity.  You cannot solicit the band in your professional position to record your personal creation.  In your official position as an Airman, you have access to pro level musicians and equipment that others may not.  This could be a violation of AF ethics.  You may not get paid for it. The band “shouldn’t” buy it from you (again, ethics) even though you wrote it outside of duty hours.  If you’re an arranger AFSC, then it’s assumed automatically that you wrote it in official duties.  You can record it on your own time and with your own equipment with colleagues from the band (on their own time and equipment) as long as it is clear (and you can prove) that you maintained separation of personal/official duties. 

Q. What level of arranging is considered infringement and/or a derivative work? Similar to the “30 seconds of use” theory. 
A. There’s no brightline definition of how much has to change and in what quality/quantity to dictate whether you’re creating a derivative or a transformative work or simply covering the original sound.  Only a judge can make a definitive decision on a case by case situation.  There’s always inherent risk even when covering a song to perform live.  What if you’re missing exact instrumentation from the original sound?  What if your singer needs a different key to perform?  What if you’d like to play a little longer on the chorus or repeat a section for time?  One resource from the civilian sector for changes to arrangements is through Tresona.  The company has developed a guide for changes that constitute needing an arranging license vs. not needing a license.  The guide will be posted on sharepoint.  To summarize: small changes are authorized without a license or permission, but large creative changes require permission and/or a license.  That criteria is spelled out in the guide.  Unfortunately, all changes are subject to interpretation.  Easiest answer is always get a license.  I have not seen any DoD band sued or taken to court over changes to an arrangement. 

Q. My group is performing a protected piece, but it’s in the wrong key/tempo/orchestration/etc. Do I need an arrangement license? 
A. (See answer from previous question) It depends on 2 things: Major mods = yes, you need a license.  Minor mods = no, you don’t need a license.  Contact the Band Support Manager about the differences.  It gets in the weeds a bit.  Look at the Tresona guidelines for examples.  Guide on sharepoint drive. 

Q. Someone else wants to "give" their music to the band or have us record their music.  Is that allowed?
A. In some circumstances, yes.  But, it will heavily depend on context and intent.  If any person outside the band (including DoD employees, other Airmen, etc.) wants to bequeath music and/or artistic content to the band, then the band should seek guidance from the AFPAA Band Support Manager's officer first.  The original owner (called ASSIGNOR) will need to transfer all rights and privilegesd to the DAF (not just the bands).  This is for everyone's protection.  
A2. For recording a non-mission-related project, that will have to go through leadership with authority to use government equipment for such purposes.  The gray area is recording the song without ownership first.  I strongly recommend that leadership obtain rights before recording outside content, just like any other cover song.  If rights are obtained, then govt use of equipment can commence since the DAF now fully owns the song and has complete control over its use for operations.

Fair Use

Q. What is fair use? 

A.  

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. 

  1. The nature of the copyrighted work. Is the protected work fact (can help in fair use defense) or fiction? (Highly creative - weighs against fair use defense) 

  1. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.  (Even quoting a single measure of melody is not always fair use) 

  2. The effect of the use upon the potential market for or value of the copyrighted work.  (Military bands typically do not affect the market substantially to disrupt someone’s ability to make revenue) 

Fair Use is a deep dive with murky waters and too many distinct situations that warrant individual attention.  There is no “One size fits all” Fair Use defense for the bands.  Typically, military bands are given much latitude for Fair Use criteria #1 and #4.  #2 is almost never a defensible act since the nature of the content we may use is protected content, not non-fiction.  #3 is obviously on a case-by-case basis.  There is no such thing as a “30 second rule” of using someone’s music.  One need only recognize the melody to a song to bring a case of infringement. (As short as one measure of music!) 

Licensing

Q. Who signs agreement with publisher?   
A. When you purchase a license to perform, there could be verbiage in the agreement that may need to be looked over by contracting squadron.  It’s been considered a purchase in the past, but it could now be considered a contract depending on local base policy (See your local JAG and/or CON office).  When you go through the publisher directly or a 3rd party liaison, they will submit a bid to you for the music to use.  You are purchasing a product (the “rights” to perform/arrange/record/video the piece.  Typically, this falls under GPC authority, but the agreed-upon stipulations may need to be approved by your contracting office.  This is an ongoing discussion.  Will update when further guidance is clarified. 


Q. Requested a song late to record/video/etc. The publisher said no. What do we do? 
A. The “simple” answer is….pick a different song. But, you still have options to get approval from owner/publisher: 

  • Contact publisher/owner directly. 
  • Use a different agency to call on your behalf. 
  • Change the song so much as to create a “fair use” situation (see the 4 rules on fair use) 
  • Buy a version that’s already been approved through other means (sheet music, etc.)

Q. How is licensing going to happen for my project?  What do I need to know? 
A. Easiest way to involve yourself is to designate a specific member to all things licensing.  They can contact the Band Support Manager for best practices and/or contact 3rd party vendors that handle licensing requests all the time.  For the most part, the steps include: 

  • Know the title of the song 
  • Know the composer/singer/writer of the song.  If you don’t know all the info, that’s ok. 
  • Know the version you want to request. (Which album, what year, who performed it, etc.) 
  • Be prepared to pay for it.  In 2020/21 it was anywhere from $0-$750 a song.  As of this writing in 2022/23 it’s over $1250 a song.  (Especially if Sony/Universal owns the rights) 
  • Know this term: MFN (Most Favored Nation).  If you have many songs to cover as part of a large project, then the highest paid license will now become the standard for all license requests in that project.  It can get pricey very quickly, especially if you choose a specialty/popular song. 

Q. My church/civ org/video class wants to use something we made. May I let them? 
A. Yes, mostly… 

1 - If we created it with public domain music, they may use it. (Please be respectful in usage) 
2 - If we covered a protected song:  no, they can’t use for free, but they can get the licensing to use our recording of the protected song and/or video. 
3 – Fair Use may be possible since it could be construed as non-profit/educational.  This isn’t a guarantee.  A license would be easiest if using one of our cover songs. 

Q. Can we record without having a license to distribute? 
A. Yes!  You can still record any protected song before it’s distributed.  You cannot distribute a protected song without approval.

Buying/Renting Music

Q. A band is renting a piece of music for use in an upcoming tour that will be public performances only. The company renting the music says you need to obtain your own performance license to use in public performances. 
A. Military bands operate under the non-remunerative (not profitable) performance exception in 17 USC 110(4), so are already covered through ASCAP/BMI/SESAC. Ensure the band does not dramatize the literary or musical work. This applies to live performances and covers live streaming.  Not recordings. 

Copying

Q. With our growing digital libraries, as long as we have the original hard copies of material, do you see any reason why we shouldn’t have digital backups? Oftentimes when we purchase new PDFs from publishers, we have the option to receive the music digitally. Has the law changed with regard to keeping digital copies of legally purchased music? 
A. Making copies. Another gray area. It’s called “digital preservation”. There are only a few specific areas that are allowable: emergency use (i.e. an hour before a gig and someone spilled coffee on their original part), for educational purposes, or for turning a page during a gig. Typically, when a pdf is purchased rather than a hard copy, there’s going to be provisions and ToS (Terms of Service) attached to that contract or purchase. If ToS is missing, contact the seller or publisher for guidance. That’s the easiest example to go by. But, what if the publisher is out of business or the owner has died? Someone still owns the rights or has passed on to heirs of the estate. Copyright protection goes on for 95 years for audio music and life of author plus 70 years for written media (sheet music). Typically making “backups” for safe keeping still constitutes copying. Although, this could be a simple integrity issue: if you made a copy for rehearsal because the original is about to fall apart and then immediately destroy the copy to preserve the fragile original, then that’s a decision you need to make with leadership. Does it fall within Fair Use? Only the courts can answer that. Have the bands ever been sued for making copies? No…not that I could find. But, from my seat, the fair use defense has been utilized a lot….mostly within our own 4 walls of the Air Force. Just depends on what’s worth defending: making a copy because it’s convenient or taking the time to buy more copies from the publisher. Only you can answer what’s right vs. wrong in your own unique situation. Those decisions are best left to each squadron leadership and policy per location.

Education Setting

Q. Can we arrange a snippet of a protected piece for a music conference?  Then, can we hand out the arrangement for the band directors to practice with their own band(s)?
A. I’m confident on my answers, but I conferred with the IP lawyer on the “distribute” part.  We both agreed that fair use will still be applicable in this situation, although at an elevated risk, but barely raised.  The elevation stems from distributing physical sheet music to audience members as opposed to viewing on a large movie screen (power point).  But, regardless of the viewing, we can’t be held accountable if someone took a picture of the screen and distributed it for practice later, hence physically handing out a short snippet to band directors should still fall within fair use.  Another aspect in your favor is “transformational use”.  Since you are taking a difficult piece and rearranging for potentially easier playing/practicing of other bands (or band size/instrumentation), you may have a good case for transformational use towards a new audience (and potential purchasing customers).  The snippet could only be scrutinized by a court for transformational properties, but that is so extremely subjective that integrity would be the best guide here.  If you believe you’ve been able to transform the short piece so that more diverse players/band directors are able to participate, then the burden of proof may have been met.  This is all under the auspice that someone would even complain.  But, by promoting the protected music as an educational piece and potential attainment by more band directors, there’s strong support that the market would prosper in the composer's/publisher's favor.

Library/Sharing

Q. A civilian band director reached out to ask about an arrangement of a protected song that we procured through a contract from a civilian arranger.  Are we able to give the band director the arrangement?
A. If the civilian composer/arranger wrote the song for the AF bands, then the contract would stipulate who keeps the rights.  More than likely, the arranger will keep the rights of the arrangement and the original song composer/owner will retain their rights as well.  The AF would not have received/obtained those rights from the arranger.  Even if the arranger transferred the rights to the AF band, the contract would still have to stipulate if the band was authorized to transfer those rights to another 3rd party from the original owner.  The original owner probably would not authorize transferrable rights from all arrangements of their original works.  Performance rights would only be retained by the purchasing body: the AF.  It (sheet music) wouldn't be transferred even between DoD bands.  The band director would need to contact the original owner of the song to ask for arrangement licensings/rights.  If the arranger that was hired by the AF is still around, they may have selling rights from the original owner and could potentially sell on the open market. 

 

Section 107

17 U.S. Code § 107 - Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(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 copy-righted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copy-righted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Note*
Fair use is NOT A JUSTIFICATION TO PERFORM PROTECTED WORKS WITHOUT AUTHORIZATION.  

Section 110

17 U.S. Code § 110 - Limitations on exclusive rights: Exemption of certain performances and displays

...
(4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers...

Note*
Section 110 in Title 17 is what protects military bands from "most" non-licensed live performances.  We do not collect funds for live performances and hold agreements from ASCAP/BMI/SESAC for this very purpose.  Yes, there will be cases where a composer/artist does not want their music played in public by anyone, including military bands (eg. exclusive contracts with limited terms and not covered by the 3 major PROs), but I have not found that situation as of this update.