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?
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.
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
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.