For anyone involved in music composition or in a decision-making capacity concerning music performance, the issue of copyright is vexing beyond belief. One is never entirely sure of what the law specifies in a particular instance, so musicians live in fear of venturing outside the realm of private performance. Composers who use popular melodies worry that they owe royalties, composers who write arrangements of older compositions–even compositions hundreds of years old–can never be sure, and performers who edit works don’t know if they are allowed to do so and are then unsure if they have a marketable product after having done so. To add to the problem, for most works, no one can be sure what is and is not public domain, due to the complications of national and international copyright law, and the disincentive of publisher’s to make clear what they regard as public domain (since public domain is not something that is actually declared by any official legal entity; it is merely the absence of copyright protection).
Here is a case in point, sent in the form of a query to an early music discussion list:
I have read the recent thread here on copying music and I am posting a closely related question that John has grazed upon. The question is: When is a piece of music that I heavily edit, my property to give away or post on the web?
To clarify:
I took an edition of the Bach keyboard works, and used this to craft (in Finale) a set of solo practice works for the violin. I started with a copyrighted score from which I laboriously keyed in all of the “melody” notes, selecting only those that maintain the musical idea.
Any fingerings, dynamics etc is totally mine. Of course the original “melody” was probably carefully transfered from Bach’s original manuscript by the editor, with some deal of effort.CASE2
I copied the instrument lines from some arias in the Bach Christmas oratorio, and then figured my own bass for the harpsichord. Again none of the usual editorial/articulations, dynamics etc was transfered
CASE3
From an edition of the Fitzwilliam virginal book, I separated many of the keyboard threads in a work and assigned them to various instruments in our consort, sometimes transposing sections etc, alternating instruments, repeating some lines etc. Again my own articulations etc.
Obviously cases I and III are quite removed from the original source.Case II is a little less clear since I don’t know how the instrumentation was derived from the original manuscript. I certainly could have gone to a 100 year old edition for the basic “melody” or bass line material to accomplish all of this but I did not have such scores on hand. (Yes-my score library is completely paid up and legal)
I have been asked by various people if they can have/play these materials (we are predominantly amateurs) and it would save me a lot of time to just put them on our web page.
This question is referenced to laws in the US although the originals are from various nations. I cannot find much legal material on the web which discusses this and expect that this is something which a lawyer would best explain. I was hoping perhaps there is some critera such as more than some percentage of the score was edited by the new authors, the “melody” being in the Public Domain. Hopefully this is not one of those issues that follows the current practice here of “inventing the law as we go along in the court room”.Any resources which would answer this question would be appreciated.
What follows is a helpful discussion in which people throw in ideas and suggestions and speculations of all sorts, but no definitive answers, particularly not definitive answers with any legal standing. This sort of query is incredibly common in the music world, and so the result is a vast international gray and black market of music performance, with only the largest publishers and record labels, with attorneys on retainer, willing to take the risk.
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Generally, anything that you change is yours, and anything you retain is the property of whoever held it. Bach’s piano works are public domain. Instrumentation derived from his works are the property of the deriver.
I’m not sure about the case of the editing of a copyrighted score. Copyright holders have the right to create “derivative works”, and a solo practice score for violin of a copyrighted piano sheet may count as a derivative work. However, because of the artistic skill involved in editing, it’s more like a creative work unto itself. Currently, I think the Circuits are split over the question, and it’s high time the Court got around to resolving it.
More generally, copyright law includes hard questions, but so do all areas of law, as does much of philosophy. Complaining about hard questions is saying, “Thinking is a pain in the ass!” That tells us nothing.
- Josh
WP,
I don’t think the point was “thinking is a pain in the ass”, the point is that there is no objective way for one to be sure ahead of time if his creative work is going to land a big fat lawsuit in his lap, even with paying for a high-powered parasi…er attorney to advise you.
If, as IP proponents claim, you want to encourage creative activity, surely your first step would be to formulate a standard that could resolve all but the hardest cases ahead of time such that the public (those without advanced degrees in IP law) knows how to act in conformance with law and get on with creating, rather spending all this time and effort trying to figure out whether they’re legal or not? This article points out that such basic questions are left unresolved by the basic stated principles of IP law. As such, it is a valid criticism – one that can only be rebutted by someone proposing an internally consistent body of IP law that flows logically from stated principles.
IP suffers from all the problems that the other aspects of positivist law suffer from – you need to consult a lawyer before you do anything. Basic property law is not like that – most people have a very good idea of what they can do with their property in 99% of situations, with the only tough questions requiring the use of attornies.
I think you’ve started from a hard case and generalised that there are many hard cases. In fact, there aren’t. For example, if I write a book, and you make a movie out of it without my permission, you’ve clearly created a derivative work and violated my copyright. Case closed.
This particular question draws on the contours of the “derivative work” right. What exactly is a derivative work, and how does it differ from tributes, homages, or creative reworking? It’s not an easy question.
As for the comparison to the stability of property law, I think that’s a bad comparison. The utilitarian ideals of IP are really only 200 years old or so. Property law, by contrast, is from time out of mind, and many of its hard questions were resolved hundreds of years ago. Even so, there are still debates about the contours of the property right, and there always will be. Punting the debate is no answer.
- Josh
As everyone familiar with the modern music knows, the most dynamic and inventive modern genre is electronic music (with all its innumerable subgenres from disco to trance to IDM to house) is the one which is built on the “deriving” music from whatever sources of sounds the composers can lay their hands on – including most of other music!
In fact, the sampling and mixing of prerecorded tracks (that what DJs do) evolved into a separate art form, to the point that the same master mixed by different DJs may to an untrained ear sound like completely different pieces.
Oh, and they don’t care about copyrights. Most of their music consists of copyrighted bits and pieces – and if you think the result is a horrible eclectic mish-mash, think again (I’d recommend starting with Shpongle’s “Are You Shpongled?” as a good intro to psy-trance).
Shpongle is indeed cool.
Intellectual property is a disaster for popular music. Consistently enforced, it would destroy the art. Can you own a chord progression? How much of a melody has to be different for it not to be infringement? What about the fact that so much of rock music draws from a set of standard progressions, hooks, and basslines?
These aren’t just tough questions in an otherwise coherent theory of property rights. They cut to the core of the problem of enforcibly owning an idea.
“Intellectual Property” is not real property. It is, in fact, a concept very analogous to “imaginary numbers” in mathematics.
Both of these concepts amount to “imaginary property”, the actual meaning of IP.
Essentially, both kinds of “IP” are fictitious claims that are created in order to test limits. In the math world, IP is used to test the borders of geometry, and is carried on completely in the theoretical realm, wheras in the copyright and patent world, IP is used to test the borders of property itself, the claims are argued entirely in the theoretical realm, but the PROCEEDS accrue unequally to a few who work the system in the very real, physical realm.
WP,
As others have pointed out, it’s not just hard cases, it’s ALL cases – literally everything you do creatively, especially in music, you should check with an attorney first if you want to be safe.
The age of IP law, other than demonstrating that it has more in common with social engineering or mercantilism than true property law, is irrelevant to this point.
A libertarian physical property law regime can be summarized into two interdependent phrases, to the point where almost all activity can be evaluated by a non-legally trained mind:
1. You can use your property in any manner that doesn’t aggress against another person or their property.
2. You aggress against another’s property when you interfere with a homesteaded right to that property.
Care to try to set forth a couple of simple, non-technical, standards a creative person could use to determine whether he is in compliance with IP law? The current system certainly can’t do that, and since IP proponents claim they want to encourage creation, this should be the basis of any argument they make. Tellingly, all we ever see out of them is something like this article, which reduces down to:
“Well, I can’t make a rigorous argument in favor of IP, but I REALLY like it, so I’m trying desperately to find one. Until I do, I’m going to ignore the rigorous arguments against it.”
Just to be open and up-front, I can actually see a very basic form of copyright in an anarchist society – basically outlawing outright plagiarism. But as others have noted when I make that case, that would be a dramatic rollback of what is protected under current copyright law – to the point of really not being the same thing at all.
Another interesting question: You are NOT allowed to copy (in a copier) new scores, even if they were written by Bach. The ‘graphics’ is copyrighted. You are however allowed to re-write the music (hopefully at least if it is ur-text. If it isn’t – is it derived work or not?). There are computer programs that can read the scanned music and typeset it. Now is this considered copying or not??
quasibill –
Just to be open and up-front, I can actually see a very basic form of copyright in an anarchist society – basically outlawing outright plagiarism.
I’m afraid you’re making the classical colectivist mistake of trying to regulate morality.
Plagiarism is immoral, no doubt – but the violent robbery of taxpayers in order to extract funds needed to protect the author from is much more so.
What all the “intellectual property” is about is externalizing costs of maintaining unsustainable business model onto thrid parties.
Having the author to pay all costs of enforcement of his rights to “intellectual property” is perfectly compatible with the libertarian ethics – he can write these rights as clauses into contract of sale of his works, thus allowing him to extract compensation from those who allowed their copy to be replicated. (It is quite another case if anyone would value those works high enough to enter willingly into such contracts).
Or he can resort to technological copy-control schemes (which seem to work much better than the law, heh). In any case there’s no need to any IP-specific law, just the contract law.
sorry for typos and misedits –
“from is” -> “from it is”
“another case” -> “another question”
averros,
I’m not making that mistake – I agree that in a totally objective universe, copyright is not a rights violation, and therefore not part of a truly objective libertarian legal code.
That said, the practical side of me realizes that we live in (and likely always will) a society that is inherently subjective in its values. That being the case, even in anarchy certain basic morality issues WILL find their way into a widely accepted legal code. I think plagiarism is so widely seen as immoral, I can imagine an anarchy that makes plagiarism a tort. As I note, though, it would be strictly limited, as the economics and enforcement costs would make any attempts to expand it past basic anti-plagiarism unstable. This would be a form of bottom up legal code which could occur in anarchy, as opposed to the top down form of IP we currently have.
Again, I don’t believe it “ought” to be, but recognize that it might exist anyway. How likely is it? I have no idea – but it seems possible to me. That’s all.
quasibill – the plagiarism is, basically, forgetting to attach a proper attribution to copied work.
I don’t think that there is any need for anything stronger than public shaming to deal with this scourge.
I don’t think that yielding to somebody else’s subjective values is a good way to preserve intellectual integrity. As soon as you make that little step of accepting nonsense for reasons of practicality you lose the entire edifice of your logical thought – simply because from any falsehood you logic allows to derive any other statement – including negation of all important truths.
Therefore by accepting this small deviation from the principles (by saying that act nearly universally considered immoral but which nonetheless does not violate anyone’s property rights CAN be justly suppressed by means of violence) you essentially negate the non-agression axiom. And with it goes the entire libertarian ethics.
Of course, you can take position that “Intellectual Property” is indeed a property – but then you end up in much worse position of advocating ownership of contents of people’s heads. Simply because if you said some words (and they are your property) and I’ve heard and remembered them, you can lay claim to something which resides in my head, right?
No, plagiarism is not a crime, and shouldn’t be illegal. It is merely stupid and immoral.
In England & Wales, copyrighted recordings are protected for 50 years. The government is considering an extension of further 45 years. The FT comment says it adds no incentive to ‘recording artists’ http://www.ft.com/cms/s/23f42d22-8491-11db-87e0-0000779e2340.html
while Paul McCartney & Cliff Richard & Co want this term extended http://uk.news.yahoo.com/07122006/344/mccartney-backs-copyright-campaign.html
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