Re: MIDI sequencing -- copyrightable??

Oh dear, I'm on my hobby horse again --

On Thu, 25 May 2000, Mark Charette <charette[_at_]sneezy.org> wrote:
>
> On Wed, 24 May 2000, Timothy Phillips <hrothgar[_at_]telepath.com> wrote:
> >
> > So, for example, a MIDI sequence of a public domain melody,
> > incorporating no original music whatsoever, would on this
> > interpretation be in the public domain, just as a printed sheet
> > of the same music would be: the MIDI sequencing doesn't in and
> > of itself confer originality.
>
> A common misconception; the music (the notes) may be public domain,
> but the printed expression of the music (typography, layout, etc.)
> may be copyrightable.

Not in the United States, see Monotype Corp. v. International Typeface Corp., 43 F.3d 443, 446 (9th Cir. 1994) (typeface, typesetting, etc., not protect by copyright law).

> Music is a horribly complex copyright situation (at least for
> the layman, as I am, and I believe even for the lawyers and
> solicitors). There's the copyright on the music, the performance,
> the printing, and the recording. Ech! Add in editorial notes on
> the printing, and you can have a non-copyrighted piece of music
> (staff notation) copyrighted because of editorial footnotes -- or
> copyrightable material because the manuscript or first couple of
> editions that are currently out of copyright had errors or
> omissions, and a corrected copy produced by an editor exists.

Editorial additions and corrections that do not result in an "original" arrangement of a piece of public domain music are not protectable and do not result in new protection for an old work. A new rap version of Beethoven's Ninth, Fourth movement would be protectable, but not the typically very minor additions made to classical music, e.g. some dyanmic markings, slurs, etc. For the most extensive discussion of just how much has to be added to a p.d. work to give rise to a new copyright, see Paul J. Heald, Reviving the Rhetoric of the Public Interest: Choir Directors, Copy Machines, and New Arrangements of Pubic Domain Music, 46 Duke L. J. 241 (1996).

> As an amateur clarinetist and keeper of a large clarinet Web site,
> <http://www.sneezy.org/clarinet/>, I can point you to 10 or so
> versions of Mozart's Clarinet Concerto, KV 622, and tell you that
> each version is currently under copyright,

Just because there is copyright symbol on the music does not mean it is validly registered. It is a well-known scam in the classical music publishing industry to make minor additions to a piece and register a new copyright since the Copyright Office does not check out the arrangers' claims. See Paul J. Heald, Payments emands for Spurious Copyrights: Four Causes of Action, 1 J. of Intell. Prop. L. 259 (1994). My bet is that none of the versions you point to is original enough to be properly registered.

> and in some cases performance and recording rights must be granted.
> Not bad for something composed about 250 years ago ...

Actually, wouldn't it be horrible, and horribly costly, if old music didn't fall into the public domain? A healthy and usable p.d. is undoubtedly what the Framers of the Constitution intended...

     Cheers,

     Paul

-- 

Paul J. Heald
Allen Post Professor of Law
University of Georgia
School of Law
Athens, Georgia 30602
706-542-7989

heald[_at_]arches.uga.edu