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MMD > Archives > January 1996 > 1996.01.10 > 08Prev  Next

More on Copyright and Recording Rights
By Matthew Caulfield


Keeping in mind your very accurate comment that we are not lawyers, I will give you my thoughts on the interesting questions you raised in connection with my post of 96.01.05 on the subject of copyright. This is pretty swampy territory, and what follows may need correction or clarification. Due to the blizzard I can't get to the office to check some of my facts, so this is all from memory.

A basic copyright principle is that nothing can be copyrighted until it is "fixed," that is put into some tangible form. For example, if I tell you a joke, the joke isn't protected until it is written down or tape recorded or such. The 1909 Copyright Act held as a result of Supreme Court decision that sound recordings--which at the time chiefly meant music rolls, but later also phonograph records, optical movie sound tracks, and tape recordings--didn't qualify as a medium of fixation because they couldn't be read. (The background of the Supreme Court case--White vs. Apollo, if my memory serves--is interesting because the suit was an attempt by a music roll manufacturer to put competitors out of business by control of copyrights on music roll "fixations" of tunes. But for that decision, the recording business would have developed quite differently than it did.)

Copyright of a piece of music under the 1909 act typically began when a composer's creation was reduced to staff notation, usually in connection with the printing and sale of sheet music. Two copies of the sheet music were sent to the Copyright Office together with a registration application and fee. Thereafter no one could publish or re- arrange that piece without permission of the copyright holder. Nor could anyone make a sound recording of the piece without permission. But once the copyright holder had permitted one company to make a recording of the piece, any other company could do so without getting specific permission by filing a "Notice of intention to use" with the Copyright Office and paying a fee of a few cents, as fixed by law, per copy of the recording to the copyright holder.

By the 1950's at least, the sheet music market had died and one finds that most music publishers had switched to depositing "lead sheets" in lieu of sheet music for securing copyright. A lead sheet is an abbreviated version of the tune, often hand-written, conveying just enough of the tune's essential melody and character to identify it and secure the composer's claim to originality. Much of the music made famous by Herb Alpert and his Tijuana Brass was registered only as lead sheets. Likewise the complete score by Henri Mancini for the movie "Breakfast at Tiffany's" was deposited as photocopies of very complete lead sheets, rather than full orchestral score.

The mere performance of a musical piece cannot be copyrighted because it is not fixed; it floats out into the air and vanishes. If, however, someone performs (or plays from a sound recording) a copyrighted piece publicly for profit--and "for profit" is construed very broadly: a restaurant using Muzak background music is assumed to be doing so to increase its profits--he normally compensates the composer or whatever entity the composer has assigned his copyright to for the privilege of playing the composition. Here is where ASCAP, BMI, SESAC and such royalty-collecting organizations enter into the equation, being authorized by composers to collect and distribute royalties. To this end ASCAP and the others have devised complex and sophisticated methods of policing public performances, monitoring or sampling the music played, collecting royalties in the form of licenses, and distributing the pool of money thus raised, minus administrative expenses, to its composer members, dividing the pool according to their estimates of the play each member's compositions have enjoyed.

A composer's right to profit from performances of his work is rooted in the 1909 Copyright Act, and it continues under the 1976 act. I don't think that when performance occurred through the playing of a sound recording, as differentiated from live performance, this fact entailed any obligation to the manufacturer of the recording--at least not until the 1976 Copyright Act extended protection to the sound recording itself, in addition to the underlying original composition or score. Manufacturers of sound recordings fixed before January 1, 1978 (regardless of the medium of fixation-- paper, shellac, acetate, oxide coating) are not, as far as I have been able to ascertain, in any position to assert a right to profit from the public playing of those recordings. The 1976 act, however, did introduce juke box licensing and the Copyright Royalty Tribunal as mechanisms to collect and distribute to recording manufacturers fees for the right to play their copyrighted recordings.

Most of the things your list subscribers are doing don't involve monetary stakes high enough to warrant the court litigation which would clarify these questions. (Remember that anyone can claim copyright, and even the registration of a copyright claim by the Copyright Office is not a guarantee rising to the iron-clad level of reliability that registration of a patent claim by the Patent Office represents. The Copyright Office depends solely on the accuracy and truthfulness of facts provided by the claimant; the courts are the ultimate arena for deciding copyright ownership.) Most dispute over music roll rights aren't worth the cost of their adjudication. I remember, however, being contacted by Artis Wodehouse early on when she was just beginning her Gershwin project. In discussing some of these questions, I remarked offhandedly to her that, oh well, nobody bothered much about those complex "rights" questions because so little money was involved. Her response was that her Japanese backers had deep pockets and that she therefore needed to be certain of her position. I am sure she or her backers did seek expert legal counsel in the end.

If one undertakes not to perform a musical composition but to make and sell sound recordings of it (including music rolls), he must deal with the Harry Fox Office, if the composition is not in the public domain. The role of the Harry Fox Office is to collect for composers a fee, based on the number of copies of a recording made or sold, for the right to make and sell the recording. The New Grove Dictionary of Music and Musicians has an article on the Harry Fox Office, as well as on ASCAP, etc. (this latter under the rubric "performance societies," I think). But its article on copyright is out of date; for that, see instead the New Grove Dictionary of American Music.

One of your questions was, "Is a roll a score or a performance?" I think it is neither. It is the fixation of a score (musical composition); to the extent that performance is involved, that happens only when the roll is played on a machine capable of converting its content to hearable music, whereupon only ASCAP comes into the picture and only then if the performance is public and for profit. The typical drafting table roll resulted from someone arranging and reducing to roll fixation someone else's original composition. If the composition was not public domain, the arranger-fixer must have permission from the copyright holder to make the arrangement. If no re-arrangement at all was involved (unlikely, I think), the roll could be made by following the "notice of intention to use" provision of the law. The rolls themselves could not be copyrighted, but the arrangements underlying the rolls could be, IF the arranger took the trouble of reducing his arrangement to staff notation and registering it with deposit of two copies of the staff notation. Few roll makers did this; Rythmodik is the only one that comes to mind. Wurlitzer certainly did not, nor did QRS.

I would think that EPROM, floppy disks, and FTP files would fall under the same considerations as rolls do, except that, being created since 1978, they could be copyrighted to protect the aspect of their creation which represents something new and is not just a copy of something that existed previously. The principle here is the same principle involved in copyrighting a translation of John Updike's "Run Rabbit Run" or of Charles Dickens' "Bleak House." In both cases the translation copyright would protect only the recasting into a different language. No permission would be needed to publish the Dickens translation, since he is in the public domain. The copyright on the translation would cover only the recasting into the new language; it would give no rights in the English original. To translate Updike for publication, one would first need Updike's permission, since he enjoys a valid copyright on the original English story; your copyright in the translation would be a separate copyright, covering only the recasting into the new language. Translating Updike for your personal use would not require permission; indeed how would he ever know? But publishing that unauthorized translation would constitute infringement, exposing you to certain lawsuit seeking statutory and punitive damages.

Software is copyrightable. Do the "proprietary file formats of music" you ask about fall into this category?

I think that the question of rights and obligations involved in what anyone here is doing depends on whether he is creating an entirely new work or a derivative work. If it is a derivative work, is it public domain with regard to original underlying musical composition, with regard to the particular arrangement, and with regard to the specific performance or medium of fixation? Realistically speaking, if your work is for your own personal purposes and you don't envision publication or profiting from it, it is unlikely that anyone's attorney will be knocking on your door. But the higher the stakes are, the more you need to talk to an attorney who practices in this specialty and who can interpret the complex issues involved

(Message sent Wed 10 Jan 1996, 21:44:18 GMT, from time zone GMT-0500.)

Key Words in Subject:  Copyright, More, Recording, Rights

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