TubeNet

The copyright question of course has my huge interest, as I don’t want to run into legal problems with my editions of free arrangements and transscriptions. My standard way of staying out of problems is about only working with older music or writing pedagogical material myself.

My present question very likely has been debated on old TubeNet, but I cannot find that discussion, even if I know about the ’site:Chisham.com ’ method of searching.

Concerned is a piece of music written before 1890 by a European composer death before WWII.

So far the music is in the public domain. The problem is that the manuscript was in private ownership for many years, so that it wasn’t made commercially available until well after 1960. That copyrighted commercial edition is the only available source.

Does that remove this music out of the public domain?

Obviously not regarding performances, but my question more is concerned about making this music available for alternative constellations of instruments including the group of instruments discussed in this group.

Part of the feedback I get from users of my editions says that my editions immediately are recognizable as mine because of my way of setting up pages and placing text elements, so the problem is not about copying any commercial engraving style.

So again:

Is music in the public domain illegal for derivative editions, if the only source is still under copyright?

Klaus

Merely speaking from my experience with text (not music) editions in the Dutch situation (which will be in line with EU rules): very often the publisher of the first edition of a text will acquire the copyright for derivative editions and translations as well for a certain number of years. This depends on his contract with the manuscript owner and the editor. So, I would recommend to contact the publisher to find out, whether you need an arrangement with him.
Hubert

In simple terms, a work is qualified for copyright if it is creative, original and fixed. Various creations qualify for copyright in different ways. For instance, an original work of music can be copyrighted, while its published edition may qualify for separate copyright for different reasons: for instance, if it is a different arrangement, if it has different interpretive or technical markups, if it has engraving that required creative considerations. Creation of an edition of copyrighted music requires the permission of the original copyright holder; creation of an edition of music for which copyright on the original has lapsed, does not.

The copyright on the edition you are referring to protects the copyright holder from copying only of any new elements in that edition; for instance, you cannot photocopy and distribute it because the engraving (and typesetting and design) of the edition is now a derivative work - that is to say, it is a separate and original creative work separate from the original. The copyright only protects additions, not the underlying creation. If the edition is an arrangement with creative additions not present in the original piece, that musical version is also copyrighted. The original music remains in the public domain, and if it the same music as the current edition you can copy it note-by-note since you are not copying additional created elements which may have been added in the edition.

Your problem may be the "publication date." Copyright is owned by the author immediately, but the term of copyright begins on publication. Performance can be considered publication. If the work was known to have been performed in the 19th century the work is surely out of copyright. If the music was publicly available in the 19th century the work is out of copyright. If the music was studied or publicly known to exit in the 19th century it is out of copyright. And so on. And if the edition was also known by the public in the 19th century, then its copyright may be defective.

To your point about your arranging style being unique; this qualifies your arrangements as derivative works for copyright under your name, which confers the privilege of distribution to you alone. Of course, it does not take the original music out of the public domain.

Hup

Thanks!

I do not put my editions under copyright, as I don’t want to take the judicial steps associated to that process. Only I warn that my editions are not good sources for further editive work.

In this present case I change at least the meter and one of the clefs. I also add articulation and breathing marks. The originally very economical indications of dynamics are changed to modern practices.

Klaus

I'd like to add to the query. I have a couple things in print, and unfortunately gave away the copyright to a very small publisher who has sold none in the last year. For example, there is a horn quartet that I find available at Hickey's and in Europe. That quartet has been transcribed/arranged (key change, instrument changes) by me for different groups, but I do not know if I infringe on the copyright that I clearly should not have given away, if I make a web site and sell these different transcriptions/arrangements. For example, as a brass quintet I have people wanting to play it but have not allowed it because I am supportive of copyright laws even if they work against me.

I am sorry, but from my experience with texts (but copyright concerns "any work of art and sciences") I tend to the following:

Klaus plans to work from a copyrighted source. That means, he needs (written) permission of the copyright-holder to publish (parts of) the copyrighted work, even if he only makes (technical) changes to it and carefully refers to the copyrighted edition and does not intend to go for an "official copyright stamp" on it. Copyright is an intrinsic right, valid without "official deposit". Only short references to it as part of another (new) work are permitted.

Mary-Ann has given away her copyright. Now she is not allowed to "make public" anything of her own work without permission of the copyright-holder. In this case only rather short passages may be "copied" for the reason of "study" by individuals.

All as far as I know from a certain experience. I am not a copyright lawyer or something alike. My suggestion would be: send an announcement to the copyright-holders about what you are planning to do and ask them to react within two weeks, if they have objections.
Good luck.
Hubert

Addition: within copyright one normally discerns the intellectual property and the right of (commercial) exploitation. Publishers mostly only care about the last. So, if they see no commercial harm in your (re)use of the material (e.g. because their publication has been sold off and they do not plan a new edition or if their costs have been recovered and no further profits of a certain scale are to be expected), they will make no objections to a new publication or edition.
Hubert

It would be amazing to me if copyright law was the same in Denmark, America, and the Netherlands.

Agreed, Michael. On the other hand some 180 countries have signed the "Berne Convention on Copyright" and share a minimum set of principles according to that.
Hubert

My editions are used on all continents but for Antarctica, so I am striving to make these editions legal everywhere.

The basic question here is whether a copyrighted edition, where it only is the engraving and the editional work that can be under copyright, can block music that is in the public domain from being used in other contexts than the original one.

Or in other words: If an editor buys a manuscript that has been in private possession since before 1890, does that imply that the editor buys the music out of the public domain?

A twist on the actual case is that the music is considered easy amateur music, a point I am not so sure about, but one of the parts is written in a clef that will cause amateurs in many countries severe reading problems.

Klaus

hubert wrote: Klaus plans to work from a copyrighted source. That means, he needs (written) permission of the copyright-holder to publish (parts of) the copyrighted work, even if he only makes (technical) changes to it and carefully refers to the copyrighted edition and does not intend to go for an "official copyright stamp" on it. Copyright is an intrinsic right, valid without "official deposit". Only short references to it as part of another (new) work are permitted.

Copyright of a derivative work only covers the derivative work, not the original. The only question is if the original work is in the public domain. Klaus can use the derivative work to copy the music, if the music is in the public domain, as long as he does not copy any of the new creative additions in the derivative work.

MaryAnn wrote:I'd like to add to the query. I have a couple things in print, and unfortunately gave away the copyright to a very small publisher who has sold none in the last year. For example, there is a horn quartet that I find available at Hickey's and in Europe. That quartet has been transcribed/arranged (key change, instrument changes) by me for different groups, but I do not know if I infringe on the copyright that I clearly should not have given away, if I make a web site and sell these different transcriptions/arrangements. For example, as a brass quintet I have people wanting to play it but have not allowed it because I am supportive of copyright laws even if they work against me.

Copyright is a property right like any other, and can be bought and sold. If this horn quartet has value to you, you may consider buying it back, or it that is impractical, licensing its use.

hubert wrote:Agreed, Michael. On the other hand some 180 countries have signed the "Berne Convention on Copyright" and share a minimum set of principles according to that.
Hubert

This is correct and some aspects of my previous post refer to US law. However, I think it is reasonable to assume that works known to be in the public domain cannot be re-copyrighted in any country that signed the Berne Convention. (There is a technical exception to this for certain works in the pubic domain published in the US after 1923, which is not relevant to this discussion.)

imperialbari wrote:Or in other words: If an editor buys a manuscript that has been in private possession since before 1890, does that imply that the editor buys the music out of the public domain?

No. But if they say that the music was never in the public domain to begin with (never published, never performed) perhaps the copyright is valid.

Hup

I have understood, that you will work from the (first) edition, Klaus, because the manuscript is not available for you. If my understanding of what you are planning to do, is right, you only want to use facsimiles (pics, engravings etc.) of parts of the manuscript, as pictured in the edition. In that case, you do not need explicit permission, but you only need to refer to the edition in case. If you are going to use parts of the edition, which are an interpretation of what the manuscript shows, you need permission of the publisher.

This is, how I was instructed to handle during my whole professional life in a European academic context.

Best,
Hubert

In this case there is only a copyrighted version available.

We can deduce the existence of an uncopyrighted urtext version, but like the Q document can't prove it or demonstrate it.

I tend to think that recreating the original work from the modern edition is arrangement, which you do not have permission to do. If, for example, the current editor deliberately changed the original, or inadvertently created an error in the original, you have no way to use the original version.

I'm aware that I'm more of a purist on these arguments than most people.

Being the perverse sort of person who does such things, I went and read the Berne Convention. I think it leaves an awful lot to the discretion of signatory governments.

Two things stand out, though. One is this:

hup_d_dup wrote:However, I think it is reasonable to assume that works known to be in the public domain cannot be re-copyrighted in any country that signed the Berne Convention.

It seems no assumption is necessary. It says this in cold prose. Good job!

On the other hand, it unfortunately also expressly says that for a musical work, performance is not publication. So if Klaus's work has only been published the once, it looks like the copyright is probably valid. At least that's how it looks to my non-lawyer noggin.

Thanks, Michael!

I had gone to bed before the arrival of your post already having decided to give up on this project, even if I had made a number of versions, which expanded on the already large number of instruments of various types and pitches served by my project.

The project has been fun and has widened my way of thinking, so it hasn’t been entirely in vain.

Klaus