The issue of copyrights in music seems to be fraught with confusion and misunderstanding, even when it comes to matters of music considered to be in the Public Domain. Just because a composition or song is in the public domain doesn’t mean that there are no copyrights whatsoever, and just because there are certain copyrights attached to a composition or song doesn’t mean that the composition or song isn’t in the public domain.
Since compositions or songs in the public domain no longer need authorization from the original copyright owner, many are under the impression that this means that no copyright can exist for compositions or songs in the public domain. That is a flawed interpretation.
Copyright is the legal term that addresses the rights of creators over their intellectual properties, but not over ideas, procedures, methods of operation or mathematical concepts. It may not extend to titles, slogans, or logos, however titles, slogans, or logos may be covered by trademark.
To understand the history of copyrights, it’s important to know that the first copyright act — the Berne Convention, also known as the Convention for the Protection of Literary and Artistic Works — was signed in Berne, Switzerland on September 9, 1886.
The current version of the convention is the Paris Act of 1971 (amended on September 28, 1979), and is administered by the World Intellectual Property Organization (WIPO). Currently, 164 out of 196 countries around the world are signatories to this Convention, including Canada and the United States.
When a translation, musical arrangement, dramatization, motion picture version, recording, abridgement, et al, is made, it is called a “derivative work.”
When it comes to works in the public domain, it means that copyright no longer exists on the work. This means that no one can legally block a derivative work of the original work from being written, performed, or commercialized.
According to the Copyright Act of 1976, derivative works are also called “new versions.” As such, while there is no copyright protection for the public domain material, copyright protection exists for the new version. This means that there is a clearly defined threshold of originality where the law recognizes where derivation begins and where original content stops.
For example, a Christmas carol in the public domain no longer enjoys copyright protection, however, the arrangement of a Christmas carol in the public domain is protected and the arranger has the legal right to include a copyright notice on the arrangement.
How is this possible? Because the exclusive right is specifically for the arrangement, which is the arranger’s original work, and not the public domain work.
And how do you find out if an original work is in the public domain? There are a number of reliable ways to do this. For example, if you were searching for information on a composition or song, these are some of the avenues that may provide the correct answer in your search.
- Original Book with the Public Domain copyright date on the Title page.
- Original Sheet Music with the Public Domain copyright date.
- Digital copy of the book or music with the Public Domain copyright date, sourced from a reputable source.
- Research the title in the Catalog of Copyright Entries from the U.S. Copyright Office.
- Contact established agencies responsible for licensing agreements.
- Checking databases such as the ones found at PDInfo.com, CPDL.org, and cyberhymnal.org.
- Checking with performing rights organizations such as ASCAP, BMI, SOCAN, SESAC, etc.
While this article only provides a small peek into the intricacies of copyrights, it does help untangle a bit of the public domain knot that trips people up from time to time.
The following sources were used to write this article.
U.S. Copyright Act of 1976, 17 U.S. Code § 101 – Definitions
U.S. Copyright Act of 1976, 17 U.S. Code § 103 – Subject matter of copyright: Compilations and Derivative Works
U.S. Copyright Office, Library of Congress: Circular 14, Copyright In Derivative Works And Compilations
U.S. Copyright Office, Library of Congress: Circular 22, How to Investigate the Copyright Status of a Work
Canadian Intellectual Property Office
Canada Copyright Act of 1988
U.K. Copyright, Designs, and Patent Act of 1988
U.K. Copyright Service, Fact Sheet P-03: Using Copyright Notices
U.K. Copyright Service, Fact Sheet P-22: Derivative Works
WIPO Copyright Treaty, 1996