IMSLP Forums

What is the current copyright status of Vladimir Horowitz’ famous transcription of John Philip Sousa’s march ‘‘The Stars and Stripes Forever” – in the three copyright regimes? I raise this question not just in regard to this piece, but also for the significant copyright issues that it raises.

Of course, Sousa’s march is PD everywhere. It was first published as a song in 1897. Sousa died in 1932.

On the web, there are currently several website that make available for downloading the sheet music of various aural transcriptions of Horowitz’ piano arrangement, using Horowitz’ recordings, TV performances and live performances as sources. For example, one of these websites, The Horowitz Scores Online (http://vkgfx.com/) offers four such aural transcriptions made by Gan, Yamaguchi, Jensen and Wada.

According to some of these websites, Horowitz made and began to play his transcription in 1944 when he became a US citizen. He never published or copyrighted his arrangement, supposedly because he was afraid that other pianists (his competition) would perform it. Now, everynote.com sells it for $3.44.

On Youtube, one can now see the Russian virtuoso Arcadi Volodos performing his own arrangement of Horowitz’s arrangement of Sousa’s “Stars and Stripes Forever” (http://www.youtube.com/watch?v=jeGTPE1Z_qs). I speculate that Volodos never received permission from Horowitz to arrange Horowitz’ arrangement.

Elsewhere on this forum, I have read Carolus’ definitive statement regarding the lack of any connection between the recording of a work and a copyright of the underlying musical work on that recording. Carolus wrote: “Recording does not constitute publication under US law. This is established by both case law and congressional statements in amendments to the Copyright act itself (resulting from the court decisions).” I think that means Horowitz’s arrangement of “The Stars and Stripes Forever” is PD in the US.

However, Carolus’ statement about the US still leaves open the possibility that Horowitz’ arrangement might now be protected in Canada or the EU. But how can a work that was composed and performed in 1944 be protected in Canada or the EU now if Horowitz never published it or copyrighted it - or even permitted it to be published?

Do any of the publications on the web constitute a first edition under Editio Princeps – with all the rights that EP bestows in the EU and elsewhere?

I assume that none of the aural transcribers could copyright their transcriptions since their common goal was to produce as accurate notation as possible from the recordings, with no original material on their parts. I doubt anyone could claim a copyright for taking musical dictation.

The bottom line is: would IMSLP post one of these aural transcriptions if the sheet music was uploaded?


MS

As for Canada and the EU, it is nearly impossible that the arrangement would be free in light of Horowitz's having lived until 1989 (the copyright term being determined by the life of the last surviving contributor plus 50 or 70 years). The situation in the USA gets murkier. If neither the arranger or the heirs of the arranger authorized the publication of the arrangement, it is an unpublished work and protected until January 1, 2060. If the arrangement was somehow published (and duly authorized to be published) without a proper notice (or with a defective notice), it could be free in the USA (and in countries of the EU not covered by bilateral treaties with the USA due to the EU's rule of the shorter term for non-EU works). I am curious if the EveryNote score has a copyright claim. The fact that it was notated by someone else from a recording has no bearing upon the copyright status unless the arranger or his estate authorized the transcription. The transcriptions from recordings on the net are a curious situation. More info is needed, obviously. Another possibility is that Horowitz expressly dedicated his arrangement (in writing) to the public domain, which naturally would mean that it is in fact public domain.

Carolus wrote: "The transcriptions from recordings on the net are a curious situation. More info is needed, obviously."

I suspect that published sheet music transcriptions made from recordings will soon develop into an important copyright issue. By recordings, I am thinking particularly of piano rolls -- which, theoretically at least, can be converted, via MIDI, into musical notation. Countless piano rolls were made of piano transcriptions, arrangements and even original pieces that were never published or copyrighted as sheet music in the US. Many of these, such as piano rolls performed by Geroge Gershwin before 1923 of his arrangements of songs written by other composers, are musically significant. Apparently, Gershwin's piano arrangements of these songs by other composers were never published as sheet music or copyrighted.

Extrapolating from what Carolus wrote, above, it appears to me that these arrangements by Gershwin would now be PD everywhere. As unpublished works in the US, they went PD 70 years after Gershwin's death in 1937. In the EU, all of the music that Gershwin wrote alone, including these unpublished arrangements, went PD 70 years after his death in 1937 (unless somehow a new published edition of these arrangements could now claim Editio Princeps.) And in Canada, all the music that Gershwin wrote alone went PD 50 years after 1937.

It may be of interest to note that "disklavier" realizations of these arrangements by Gershwin were recently issued on CD.

As for cylinder recordings and 78-rpms, it should be possible for musicians with extraordinarily fine musical ears to transcribe other unpublished musical works and arrangements from recordings. There is even software being developed to convert audio recordings (such as 78-rpms) to MIDI - although from what I have seen and heard, these programs are not yet ready for prime time. Once converted to MIDI, it is possible to convert these sequences to musical notation - although that is still a highly problematic process to do accurately.

I forsee transcriptions of recordings as copyrighted sheet music increasing in the future. I think the copyright issues should be clarified.

MS