Copyright status of sheet music?

Factual Questions
1

Suppose I am the music librarian of an orchestra. I order one copy of each part of a classical symphony. Carefully avoiding preface, introduction, notes, etc., I photocopy as many copies of each instrumental part as I need. Is this legal?

If not, suppose I actually play a part on a keyboard that records what I played and transcribes it to sheet music and I add composer’s directions and make many printouts of that. Is that legal?

If either of these is legal, why do music publishers continue to publish orchestrations?

2

Neither of these is legal (in the sense of not being copyright infringement). Sheet music enjoys the same protections as any other “tangible form” of creative expression, including the protection for derivative works (your second example) insufficiently different from the original.

3

IANAL or a music publisher, but my WAG is that a publisher who wanted to haul you into court in a case like this would argue that transcribing a musical work (in the public domain) is not a simple mechanical (i.e., non-creative) process. Many decisions go into placing all those notes on a page: how many bars per line, how many staves per page, where the page breaks fall, and so on. To say nothing of the many other editorial decisions that may be called for, such as fingering guides, and elements that may not have been present in the original manuscript but that are needed to bring the music into line with modern usage. The whole process is arguably different from, say, printing out the text of a play by Shakespeare.

So our litigious publisher would claim that his creative contribution to this PD work was itself copyrightable. And I, for one, would tend to agree with him.

Now for all I know, case law may very well have settled whether I’m right about this, and if a Doper attorney can tell us, I’ll be interested to know.

As for your other example, I think you’d be in the clear on that one, assuming the original composition is PD.

I have something of an appreciation for this issue, because I’ve tried using that method myself, and after trying to work with the inelegant output from the (admittedly rather basic) midi software I was using, I had a new respect for the artistry involved in publishing really readable music.

TimeWinder: I believe that the OP was assuming that the underlying composition was PD, so an automated transcription from his own performance would not be derivative of a copyrighted work.

4

In case there’s a practical impetus for this question, I direct you to the Mutopia project.

5

First of all, is the sheet music in public domain? If it is, then you can make copies.

Mutopia (like Gutenberg for books) is clearly using PD works, so there are no copyright issues.

In the US, the simplest cutoff for PD is 1923: works created before that are public domain. Thus, most classical composers are PD and you can make whatever copies you wish (assuming you’re using the composer’s orchestrations and not some special version; e.g., if someone redoes the 1812 Overture for oboe, lute, and sousaphone, that orchestration could be copyrighted).

For the orchestration, it can be copyrighted if it is a particular orchestration. But even if it’s PD, the publisher can make money on it as long as it is cheaper to buy the orchestration than to make the needed copies. It’s also easier: the orchestra can order a set and just hand it out to the musicians. Copying would entail getting all the parts and making copies – a rather tedious and time-consuming task. I suppose you could photocopy the conductor’s score and hand that to everyone, but it would probably be a pain in the ass for the musicians to use.

Now, if the work is under copyright, it’s a whole different matter. You can’t make copies. The transcription machine described in the OP is just another way of making copies, so using it would be a copyright violation.

6

RealityChuck: do you have cites for any of the claims in your post?

I’ve just looked at some of my classical music books. One is a collection of ragtime pieces, each one of which contains its original pre-1923 copyright notice. The book itself has no overall copyright notice. I believe that the publisher of the book (who is not the same as the original copyright holder) simply reproduced the original music unchanged. He could do that because the work and the specific transcription is in the public domain.

I have other books of the works of Mozart and Bach that appear to be transcribed specifically for that edition. They include introductions or other additional material, but bear copyright notices that are not specifically restricted to the new material, and so seem to be claiming copyright for the entire book.

This is why I thought that a music publisher might claim some right to his specific transcription of a PD work.

I really wonder about this in particular. With a midi keyboard and software, you can easily transcribe anything you play. Is playing a copyrighted piece of music (in private) a violation of copyright? I don’t think so. Is making an analog audio recording of your performance a violation? Is making a midi recording a violation? Is printing out that midi recording in standard notation? You say yes.

I’m not saying no, but I’d like to see a cite.

7

[QUOTE=Hari Seldon]
I order one copy of each part of a classical symphony. Carefully avoiding preface, introduction, notes, etc., I photocopy as many copies of each instrumental part as I need. Is this legal?
[/quote]
If what you are photocopying is not in the public domain, then photocopying contravenes copyright laws. If it is, then it doesn’t. If it’s a copyright work, the copyright holder expects you to buy as many copies as you need of each part, not make your own. By making your own, you are depriving the copyright owner of revenue that s/he could reasonably expect to derive from being the rights owner.

Of course, this kind of thing goes on a lot. The music teacher at my old school used to photocopy copyright material all the time. In 99% of cases, it’s unlikely any legal proceedings will actually result. But this doesn’t make it legal.

If what you are playing is under copyright, then what you are doing is just finding another way to make a copy, albeit without photocopying. So it still contravenes copyright law.

Copyright law is about protecting the legitimate rights of the copyright owner to benefit or profit from that ownership, and to exploit it as he or she sees fit. If you owned the rights to a classical symphony (either because you wrote it or because you had paid to own the rights), and someone wanted 16 copies of the violin part, you’d want them to purchase 16 copies rather than buy one and xerox it.

IANAL, but I’ve had reason to learn more than the average Joe about copyright law. I’m also British, so YMMV according to national copyright laws and practice.

8

Editions of older music are also subject to copyright. So any transcription of a composition made within the applicable timeframe, even if it’s not a reorchestration or arrangement, is also not supposed to be copied.

9

::sigh::

I agree that this is the general principle of copyright, but do you have cites for either of these claims as related specifcially to printed music? The OP has raised some issues that, IMO, fall into a gray area, and my previous posts have tried to articulate what I thought those gray issues are. You haven’t offered any supporting evidence for your assertions.

It’s nice to have someone agree with me, but do you have a cite?

10

[QUOTE=commasense]
It’s nice to have someone agree with me, but do you have a cite?
[/QUOTE]

For English law:

http://www.mpaonline.org.uk/Publications/The_Code_of_Fair_Practice_in_Full.html

11

Okay, I should have checked the link to Mutopia that II Gyan II provided us:

Which supports my original idea, that the OP’s first plan may be a violation if the edition he is copying is a recent copyrighted edition of a PD work. If it’s an old edition, or a non-copyrighted copy of an old edition (like my ragtime book), it’s not a violation.

Mutopia’s language is a little vague, probably to cover the fact that it is intended to apply generally to many different countries’ copyright laws. But it may also not be an authoritative statement of the legal situation. I’d be interested in seeing other supporting cites.

I’m also still interested in finding out about the midi transcription issues. I’m sure they’ve been discussed, and probably litigated, at great length, I just don’t have the time right now to start searching. I’m supposed to be working.

On preview: Thanks GorillaMan!

12

Interesting replies. When I specified classical music, I had in mind that the classical period ended in the early 19th century, so it is all PD. I was mainly wondering what, if any copyright, there was in publishing the sheet music. I realized, and said so, that preface, notes and the like, couldn’t be legally copied, but I was wondering about the actual arrangement of the notes on the page. The general consensus seems to be that it is.

Incidentally, if you use midi or the like to produce te sheet music, then multiple copies are no problem. The idea of using the conductor’s score is a non-starter. Watch sometimes and you will see that the conductor is turning his pages more than once every minute and the other musicians would not be able to function under such a regime.

I wonder when some enterprising type is going to produce an electronic music stand whose pages don’t have to be turned, but that follows the music and moves the pages automatically. Unless it has already happened.

My question was purely hypothetical, the result of a discussion I and some others had. I have no intention of copying any sheet music. Only CDs and only for my personal use.

13

[QUOTE=commasense]

[/QUOTE]

In America, this is only true for works first created after 1977.

Copyright cite #1

[QUOTE=The US Copyright Office]
The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication. As a general rule, for works created after Jan. 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. For works first published prior to 1978, the term will vary depending on several factors.
[/QUOTE]

Which are described in:

Copyright cite #2

1922 is the last year for Public Domain certainty, because, prior to the Sonny Bono Copyright Extension Act in 1998, the extended renewal term of protection was 47 years, for a total of 75. So works copyrighted in 1922 and renewed in 1950 were protected until the end of 1997, but works copyrighted in 1923 and renewed in 1951, which were supposed to have the protection expire after 1998, are now protected through 2018, and nothing will enter the Public Domain through expiration of copyright term until then.

14

[QUOTE=Hari Seldon]
Interesting replies. When I specified classical music, I had in mind that the classical period ended in the early 19th century, so it is all PD. I was mainly wondering what, if any copyright, there was in publishing the sheet music. I realized, and said so, that preface, notes and the like, couldn’t be legally copied, but I was wondering about the actual arrangement of the notes on the page. The general consensus seems to be that it is.
[/QUOTE]

IANACL. Or any L, for that matter.

Unless of course, as was mentioned upthread, the pages you are copying were simply reproductions of a Public Domain publication, as opposed to a new typesetting of the notes on the page. Then, while it still would be illegal to copy them, it would be very difficult to prove you were not copying directly from the Public Domain source, unless the publisher had placed specific markings on their copy that uniquely identified it as coming from their edition (such shenanigans are not unknown in the world of Public Domain film).

[QUOTE=Hari Seldon]
Incidentally, if you use midi or the like to produce te sheet music, then multiple copies are no problem. The idea of using the conductor’s score is a non-starter. Watch sometimes and you will see that the conductor is turning his pages more than once every minute and the other musicians would not be able to function under such a regime.
[/QUOTE]

The MIDI issue is interesting, because if the work you are transcribing is PD, you are creating your own derivative work, and have the right to copy as much as you like. The question is, if you are using a copyrighted edition of the PD work to play from for the transcription, does this violate the rights of the copyright holder of the edition you played from?

I think it could be argued that it does not, barring actual legal precedent. You are transcribing (essentially recording) your performance of a PD work, and the sheet music generated may or may not resemble the physical arrangement of the copyrighted edition you used to play from.

[QUOTE=Hari Seldon]
I wonder when some enterprising type is going to produce an electronic music stand whose pages don’t have to be turned, but that follows the music and moves the pages automatically. Unless it has already happened.
[/QUOTE]

Even better than than that, they are perfecting “electronic paper”. The Media lab at MIT, as of 10 years ago (this according to my friends who saw a demo by another friend who worked there, and of course by that friend herself), had a kind of wired fabric that you put on a special table, and that day’s newspaper would appear on it. Some time in the fridge reset it.

Once they work out the kinks and eliminate the fridge bit (which, for all I know, they have already done), I foresee a music stand where you tap a foot switch and the next page of the score appears in front of you.

[QUOTE=Hari Seldon]
I have no intention of copying any sheet music. Only CDs and only for my personal use.
[/QUOTE]

Actually, the whole “single copy for myself constitutes fair use” issue has never been tested in court, to my knowledge.

15

I have here a publication of sheet music: Two Settings of B’tzes Yisroel, pub. by Transcontinental Music Publications, (c) 2004. The settings are by Louis Lewandowski (1821-1894) and Elieser Gerovitsch (1844-1914). Based on the two composers’ lifetimes, ISTM that the works are both in the public domain. However, both settings include this text:

(Bolding and italicization are in the original.)

As previously noted, for any work in the public domain, that emphatic note is BS. I’ll allow that this publication may be new and subject to its own copyright, but does TMP have any legitimate claim to copyright or performance rights of the underlying works?