Copyright question

[a2ba4u]

I've searched the archives and can't seem to find an answer to my question, so this one is directed to all of the copyright afficianados out there...


Let's say that I want to arrange a piece of music that is most likely in the public domain (maybe a Bach orchestral suite, Tchaikovsky symphony, Mahler song etc.) for brass quintet, kazoo quartet, hecklephone choir, etc. Let's also say that I have three different "sources" for my arrangement: an old (circa 1900) edition of the piece, a 1955 edition, and a 2004 critical edition by an esteemed musicologist. Though I wouldn't have to pay money to the creator of the work or his/her estate (because the work is in the public domain), would I need to get permission from/pay money to the entity that holds the copyright on the various editions?

Any help would be appreciated.

Kyle

[Dean E]

Good question.

Avoid copying new versions or arrangements of public domain works.

Would the sources be sound recordings or sheet music? Published in the US? Bootleg recordings?

Get a copy of "This Business of Music" from the library or Amazon.

Google "copyright faq wipo" and "copyright faq".

Finally, please see a lawyer.

[iiipopes]

Oh, yeah. What he said. Especially that last line. Even George Harrison had to end up paying a judgment when a line he wrote was too close to something else. And see the lawyer FIRST, so he can help you going in, which usually only costs a moderate amount, instead of cleaning up your $#!+ after it hits the fan, which will cost much more at that point.

[evan]

NON-expert opinion...

If you base it entirely on a public domain score then how could you get into copyright trouble? If you used a copyrighted modern arrangement, then you'd be infringing.

[cynical mode on] Yes, go pay a lawyer to answer this question, thereby supporting the legal profession. That way we'll get more lawyers and they will write more laws so that we have to pay for legal advice on more topics. [cynical mode off]

I'm sorry, I don't mean to criticize the (good) advice given earlier, but I'm rather annoyed with some of the copyright / patent law on the books.

-Evan

[iiipopes]

If you are annoyed at copyright laws, that's why we have the Bill of Rights so you can petition your Reps and Senators to change it.

I don't pull my own teeth, I don't do surgery on myself, and I don't sign important documents or plan major business decisions without help.

If all you do is take the original score from a public domain work and do all of your own arranging, OK. But that in and of itself will not keep someone from claiming you copied their arrangement, whether or not you did.

As far as getting permission, that is depending on the arranger, and any set permission policy the publisher may have, so help with drafting the request letter setting forth exactly what you want to do is most advisable.

[Chuck(G)]

As far as getting permission, that is depending on the arranger, and any set permission policy the publisher may have, so help with drafting the request letter setting forth exactly what you want to do is most advisable.

...and no copyright holder is under any sort of obligation to grant permission for an arrangement. Just try getting permission, for example, to do a new setting of "God Bless America". (I'll bet that some of you thought thtat was in the public domain!).

It's the law. If you don't like it, hire a lobbyist to get it changed.

[windshieldbug]

Wait! Is a Maitre d' a 'lobbyist'?

[Rick Denney]

Let's say that I want to arrange a piece of music that is most likely in the public domain (maybe a Bach orchestral suite, Tchaikovsky symphony, Mahler song etc.) for brass quintet, kazoo quartet, hecklephone choir, etc. Let's also say that I have three different "sources" for my arrangement: an old (circa 1900) edition of the piece, a 1955 edition, and a 2004 critical edition by an esteemed musicologist.

All of your example composers did their work before 1923, so anything they did would be in the public domain.

But any work done by the 1955 arranger and the esteemed musicalologist in 2004 would still be protected by copyright. The 1900 edition, even if it added stuff by someone other than the composer, would now be in the public domain.

Some modern editions are clear about what is copyrighted and what is new. For example, the Torchinksy excerpt books include Torchinsky's comments in the introductory section, and a facsilmile of the original edition following. The original part may be in the public domain (that would have to be determined case by case), but the comments are definitely still copyrighted.

But many modern editions aren't so forthcoming. They may be nothing more than new engraving, and they may have a correction or two here and there. You can't know by looking what is the new creation of the modern copyright holder and what was already in the public domain.

And some publishers republish public-domain music in its original, or urtext form, and copyright only their frontispiece or introductory material. The example that comes to mind is Dover, who does this with old urtext scores. You can use the public-domain music in those scores without problem, though I would not make facsimile copies of their pages. Just look in the Dover frontispiece for the copyright or publication date of the original music. I was looking at a Dover score of Holst's The Planets last week, and stated when the music was published (1918, which means it's in the public domain).

So, if you have a copy of the music that has a publication or copyright date prior to 1923, be glad you have it and use it freely. Hang on to it in case the 2004 musicologist challenges you.

The significance of the 1923 date is that anything created before that time would have passed into the public domain before the copyright laws changed in 1978. Those works still protected by copyright after 1978 (which would include most works created in 1923 or later) may or may not be in the public domain and the only way to safely know is to get permission from the copyright holder.

Rick "who thinks copyright law has lost connection to its true purpose, but who thinks disobedience is not the solution" Denney

[iiipopes]

I'm just glad Congress added the provisions for performers to get royalties for their performances. Now I get a little beer money once a year. McCartney, on the other hand, gets enough that maybe one day he can buy his catalog back from Michael Jackson.

[Chuck(G)]

Evan - copyright law is totally bogus in many ways; I am in agreement 100%. One of the things I'm going to do before I die is get Title 17 changed to be fair to composers and creators...

Lisa, one of the first things you're going to have to come to terms with is that lawyers don't make the law.
.

Mary Bono, who succeeded to her husband's seat in Congress after his death, explained: "Sonny wanted the term of copyright protection to last forever," but "I am informed by staff that such a change would violate the Constitution." She suggested that Congress consider the proposal of the MPAA's Jack Valenti, for "forever less one day."

[Dan Schultz]

It doesn't matter how much you educate yourself on the subject of copyright law... It's still an attorney's game. All the wisdom in the World won't prevent someone from suing you and costing you a lot of money... regardless of who is right and who is wrong. I have the utmost respect for composers and arrangers. It's the attorneys I have a problem with. As long as the attorneys are making the laws, this is how it's going to be. Not much incentive there, is there!

[iiipopes]

Ha! Is my state in trouble then! As far as state legislatures go, my state ranks among the lowest for attorney members.

[windshieldbug]

As far as state legislatures go, my state ranks among the lowest for attorney members.

Dick Cheney is from your state!?

[Alex F]

A Chicago based organization, Lawyers for the Creative Arts (LCA), provides free or low-cost legal services regarding copyright, trademark, contact, employment, tax, and other legal matter facing musicians, artists, and smaller non-profit organizations. Services are provided through a network of volunteer attorneys, some of whom are employed by "high rent" law firms.

Basic eligibility for services is a gross household income of less than $30k/year or $250k/year for nfp arts organizations. For more information, go to www.law-arts.org.

Alex F.

[a2ba4u]

Thanks to everyone, particularly Lisa, for your input on the subject.

Just summarize what I'm reading on this board and from the numerous websites that I have been consulting:

"It's OK to use a score of a PD work (such as the originally mentioned works) to do my arrangement AS LONG AS the score is ALSO in the PD. It is tough, sometimes, tell whether or not a score is in the PD unless you are trained professional, but you can be reasonably certain that all music (both the actual notes AND the editions that are reprinted) contained in Dover scores (the MUSIC, not necessarily the prefaces, translations, etc) is PD."

These answers to my original question have prompted me to think of another one:

OK, so I have decided to do my hecklephone choir arrangement of Beethoven's 5th, and, again, have the three kinds of scores available to me to work from. Based on some of the answers already posted, it is obvious that I should use the ca. 1900 edition as my source for the notes, rhythms, etc. because that edition is most likely in the PD. The question then becomes, "How would somebody know (based on looking at MY hecklphone choir arrangement) whether or not I was using a PD score of a PD work to do the arrangement or if I was looking at a copyrighted edition* of the PD work to do my arrangement? I would most like do some altering of whatever source material was in front of me to suit the characteristics of my group, and Beethoven 5 will always start with three pickup notes regardless of whether my source score is copyrighted or not. I'm not saying that I would ever do this, but the answers to my original question prompted me to think about the problem a little more in depth."

*for the purposes of this discussion, let's say that I would do my hecklephone choir arrangement based on an edition of the original score, NOT a different arrangement, say, for timpani octet.

As always, all responses appreciated.

Kyle

[Rick Denney]

OK, so I have decided to do my hecklephone choir arrangement of Beethoven's 5th, and, again, have the three kinds of scores available to me to work from. Based on some of the answers already posted, it is obvious that I should use the ca. 1900 edition as my source for the notes, rhythms, etc. because that edition is most likely in the PD. The question then becomes, "How would somebody know (based on looking at MY hecklphone choir arrangement) whether or not I was using a PD score of a PD work to do the arrangement or if I was looking at a copyrighted edition* of the PD work to do my arrangement?

If they sued you, you would have to persuasively argue that you use the PD version. To be persuasive, you'd have to have it in your possession, and be able to tell the story of how you got from it to your arrangement.

Lisa and Dan are both right that you can't keep someone from suing you, and that being sued sucks even if you win handily. But it usually doesn't start with a lawsuit. Usually, you get a cease-and-desist letter demanding that you stop selling your infringing derivative work and destroy all copies, plus perhaps demanding a payment for each copy sold. You can always comply and the problem goes away, often for relatively little pain. But if you truly did prepare your work based on a PD copy, you can write back saying that your work derives from a public-domain copy published in 1900 which you have in your possession, including notes on how you used it to derive your work. Then, they have a choice, but if they lose they'll also have to pay their attorneys. My point is that I would think it rare that you would have no opportunity to put up a defense before actually being sued.

Of course, some companies sue just because they can as an intimidation tactic. But I have a feeling that tide will eventually turn.

Keep a daily diary of how you created your derivative work. In intellectual property cases, those diaries are extremely valuable.

Rick "who really would like to hear a Beethoven symphony played by a tympani octet" Denney

[windshieldbug]

Rick "who really would like to hear a Beethoven symphony played by a tympani octet" Denney

This says more about you than we really want to know...

[Joe Baker]

As far as state legislatures go, my state ranks among the lowest for attorney members.

Dick Cheney is from your state!?

Now, he only shoots 'em in Texas, where they are overly abundant. No lie: I know of TWO Texas attorneys who have passed their bar exams who are currently doing yardwork to support themselves, because they can't find employment as attorneys. Cheney was just exercising population control!

______________________________
Joe Baker, who is curious: would anyone be interested in a CafePress rollout of the "Lawyers Unlimited" pic?

[windshieldbug]

I know of TWO Texas attorneys who have passed their bar exams who are currently doing yardwork to support themselves

I always thought it was the other way around; yardworkers who became attorneys...

[Chuck(G)]

Attorneys don't make law, Chuck is right. I'm not the happiest law student in the world, in fact, I miss music so much it aches. (Thus, my attempts to 'cross back over' once I AM an attorney.)

'Sokay, Lisa. Patent law's just as nutty--the good news is that patents only last 14 years, not 95.