IMSLP Forums

IMSLP now hosts scans of many musical manuscripts -- from the 19th C. and earlier. A considerable number of them have never before been published -- that is, as printed music on paper -- or otherwise copyrighted.

In the US, Editio Princeps ended at the end of 2002. Thus, from 2003-on, all unpublished works created by anyone dead more than 70 years are now PD in the US. Consequently, if someone were to typeset exactly and publish today the notation in one of these PD manuscripts (adding no new original intellectual material,) that publication would not be protected by copyright in the US -- even if it bore a copyright notice. If, however, the typesetter were to add original intellectual content to the contents of the manuscript, then that new intellectual content in the publication would be protected in the US.

What is the nature and quantity of new original intellectual content that would qualify such a publication for copyright protection in the US? Just to be clear, I will limit my question to new editions of works in the public domain -- and not new arrangements, or new orchestions, or transcriptions, or new completions, etc. By editions, I mean new published versions of PD works in which some wrong notes have been corrected, perhaps some fingerings added to the piano parts, some bowings added to the string parts, some slurs and articulations added to the wind parts, plus a realization of a continuo part. Basically, the composition is not substantially altered.

If an editor were to add only a few instances of each of the above-mentioned editorial changes in a large score, would that qualify the edition for copyright protection? Probably not. At what point does the quantity of these marking cross the grey area from simple typesetting into copyright-worthy protection?

And what kind of editorial changes count? I gather from some previous discussions in the forum, that keyboard fingerings may not count, just as realized continuo parts may also not count.

Who determines whether the nature and quantity of these editorial additions quality for copyright protection? What is the standard for judging whether original intellectual content in a PD score is sufficient for copyright protection as a new edition in the US?

MS

In the USA, the "threshold of originality" bar is pretty high, though the copyright office accepts registrations for things (like Baerenreiter's critical editions of Mozart and others) which it really shouldn't. Realistically, if you wanted to produce an edition of a public domain work that would have a decent chance of surviving a court challenge, you would have to produce what amounts to an arrangement. For example, if you were going to produce a new edition of an earlier work in which there was a continuo part, you should produce actual, playable parts for all the instruments employed or potentially employed in the continuo. The keyboard part should be more than simple block chords that any reasonably competent second-year theory student could produce, with added ornamentation, etc. The violone part might have some differences from the gamba part, which in turn would have some differences with the bassoon part. Once an editor contributes things of this nature, he has added his own individual interpretation to the original, which is often an outline or sketch of what might have actually been played in history.

Eventually, there will be a serious challenge of the whole urtext house of cards in the US. If the existing cases which addressed the "threshold of originality" concept like Feist v. Rural and Bridgeman v. Corel are any indication, urtext editions have a very slim chance of standing up under court scrutiny. In other countries, Germany in particular, they have actually addressed this issue in a fairly equitable way. The Neue Mozart Ausgabe issues are protected there for 25 years from the date of publication and I don't think it's even a full-fledged copyright, but a limited type of copyright both in term length and scope (I don't think GEMA, for example, collects performance royalties on Mozart works performed from NMA scores). This strikes me as being more fair than the all-or-nothing type of situation that exists right now in the USA. Urtext editions are something which is ideally suited for Creative Commons licenses, which is why those who contribute such editions to this site are required to do so under one of those licenses. (Use the non-commercial version if you don't want the Ebay sellers to copy your files and sell them on their latest DVD with "50,000 of the World's Greatest Piano Sheets" and the like.)

Many thanks, Carolus, for a penetrating analysis of what is, evidently, a significant copyright issue.

MS