Posted by Rick Denney on June 25, 2002 at 14:01:39:
In Reply to: Re: Re: Copywright vs. Punishment posted by Doug on June 24, 2002 at 19:47:26:
If you do it in the privacy of your practice room, nobody will ever know if you don't tell them, so it is a moot point. I'd suspect that it would fall under fair use, if used for private study.
If you perform a piece in public and the copyright owner finds out and comes calling for a royalty, the fact that you were playing by ear would be no excuse. In fact, many melodies contain fragments of other melodies that may have been used before, and when a composer quotes from another composer by accident, there is usually an accommodation made between them to sort it out. But there is no assumption that it is okay.
Many musicians play covers all the time, but the venues (including performance spaces, record publishers and radio stations) pay a general royalty to ASCAP and BMI to provide for such uses. So, if you improvise a variation of a copyrighted tune during a public concert at an auditorium, the general royalties paid by that auditorium should cover you. If you record it on your CD, the record company should handle clearing the copyright. But rest assured that in one way or another, it is handled.
The one time I heard Arnold Jacobs play an excerpt to make the point you mention was a fragment of Scheherezade, which is well and truly in the public domain by now. And even then, he was performing a tiny excerpt for educational purposes, which very likely falls within fair use.
Rick "a fair user" Denney