Re: Aphorisms and Copyright

Moritz Roettinger <moritz.roettinger[_at_]dg23.cec.be> wrote
>
> Timothy Phillips <hrothgar[_at_]telepath.com> wrote:
> >
> > If the melody of "Old Hundredth in a modern songbook is the same
> > melody that appeared in the 16th-century metrical psalters, then
> > it can be copied from the modern songbook just as it could be
> > from an original copy of one of the 16th-century books.
>
> Attention: There may be a copyright for the editor or publisher.
> In this case you would be permitted to make a copy from the original
> or from the copy of the 16th-century book, but not from the modern
> songbook

In the U.S. we don't have a published-edition copyright. The 1909 copyright law put it very clearly: "Copyright shall not subsist in the ORIGINAL TEXT of a work in the public domain". "Original text", not "original ink". The new law covers the same ground by applying only to original works of authorship. This would disqualify a straight reprint from copyright. You say yourself that I may copy from "a copy of the 16th century book." But if the modern songbook copies the old melody exactly, the melody in the modern songbook is no more copyrightable than it would be in a copy of the entire 16th century book. If it is not copyrightable, then it may be copied without infringing, as long as no protected material is copied along with the melody (e.g., original, protected harmonies or original, protected lyrics.)

The standard of originality for a musical work to qualify as a derivative work under U.S. law is, as I understand, vague and controversial. For one view, see Paul Heald, "Revising the Rhetoric of Public Interest: Choir Directors, Copy Machines, and New Arrangements of Public Domain Music," Duke Law Journal 46(2), 241-290(1996). In theory, for "musical editing" to qualify for copyright, it would have to make the edited work more than a trivial variant of the original. On the other hand, there is at least one U.S. case which, as I recall, appears to some to uphold copyright in fairly elementary markups like ties, slurs, and dynamics. Since the music is almost never published as part of the report of a musical copyright case (there are a few exceptions), it is hard to tell from the published report alone what sort of "musical editing" the court considered protected in that case. But anyhow, my earlier post didn't refer to derivative variants of the melody at all, or to the copying of dynamics or other extraneous marks. I wrote that IF the melody in the modern book is the SAME as the 16th- century melody, then the MELODY may be copied. Similarly I think that the melody "Simple Gifts" could in theory be transcribed without infringement from the published score of Copeland's "Appalachian Spring" as long as one was careful to transcribe the melody alone, from a part of the work (if any) which reproduces the old Shaker tune exactly (or with merely trivial variations), rather than from a part of the work that runs it through some copyrightable variation.

This of course leads to the deconvolution problem of derivative copyright. How do you know, in a derivative work, which features are in the public domain and which are under copyright? The best solution, to my thinking, is (1) re-establish the requirement of notice; (2) keep the term of copyright short enough that in doubtful cases one has EASY access to published sources on which the copyright has expired, and (3) in the case of published sheet music arrangements of public domain melodies, encourage the publishers to publish the original melody (if it's short) inside a box on the back cover of the sheet music, with a notice that "this air (within the bordered region) is in the public domain and may be copied freely as long as no protected material from elsewhere in this work is copied along with it".

DISCLAIMER: This email contains my private opinions. Nothing in it constitutes legal advice, or establishes a lawyer-client relationship. In fact, I'm not even a lawyer.

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Tue Aug 25 1998 - 16:34:54 GMT