As an administrator and copyright reviewer, I am happy to provide some information that might be helpful when looking to the US copyright status of Sorabji's works (or any works in general).
ahinton wrote: ↑Mon Mar 06, 2023 1:43 pm
Be the veracity of all of the assertions various as they may - and the issue as to whether or not Sorabji's copyright on his early publications was renewed is one into which I will look in due course -
This is not so complicated to check, but there is a caveat. US copyright law at the time granted an initial term for 28 years, which was valid so long as all published copies had a copyright notice that complied with the requirements. The Sorabji scores I have seen do have such notices. In order to keep a US copyright past the 28th year, it was necessary to file a renewal notice with the US Copyright Office. These notices of renewal were publicly recorded in the Catalog of Copyright Entries. The CCE is
available online. A work published in 1931, and thus having a 28-year term, would have its copyright expire at the end of 1959/beginning of 1960. According to the copyright rules in place at the time, a renewal could only be filed during the last two years of a copyright term. So, for a work that is copyright 1931, you can check the CCE renewal records for musical compositions for 1958 and 1959. I checked, and did not find any notice of renewal for this work. I also checked the 1960 records, in case the notice was only published late, and there was no record of a notice of renewal then either. So the copyright on
Opus clavicembalisticum definitely was
not renewed before its initial 28-year term expired.
The caveat, which is very important here, is that US law actually treats foreign works
more advantageously than US works. A foreign work that was not published with a proper notice, or which did not have its copyright renewed, had its US copyright "restored" (even if it never existed in the first place), so long as the work was not in the public domain in its home country on the URAA restoration date. For the UK and most other countries, the restoration date is January 1, 1996. Of course, Sorabji's works were not in the public domain in the UK in 1996 — just as they are not in the public domain in the UK now. So any work of Sorabji's that was not a US work would have its copyright, if not renewed or validly created to begin with, restored in the US.
However, any work that was first published in the US, or simultaneously published in the US and some other country, is considered a US work, and the authorized distribution of the work constitutes publication.
In the case of
Opus clavicembalisticum, the authorized sending of a copy to Engel meant that the piece was published simultaneously in the UK and US according to US law, and so was ineligible for automatic restoration — and so, because it was not renewed, it remains in the US public domain, just like the many works first published in 1931 in the US which did not have their copyrights renewed (that's most of them, by the way). This case (of one copy of a small first run being documentedly sent to the US) is a bit unusual; the much more common way this rule applies is when the work is simultaneously made available for
widespread sale in the US at the same time it is made available in another country. But the limited publication exception in US law is for distributions made for a specifically limited
purpose, with no respect to limited
number of copies, so once there was proof of one authorized copy being sent to the US, the simultaneous publication was established.
So, in short, you can follow the following rules to determine the status of one of Sorabji's works in the US. Depending on the circumstances, you will need to know the date of first publication, whether or not the publications all included a valid copyright notice and whether or not copies were offered to anyone in the United States.
* According to US law, a valid copyright notice must include:
- The symbol "©", the word "Copyright" and/or the abbreviation "Copr."
- The year of first publication of the work, though, in case of a derivative work only, if only the year of the derivative work is included, this is acceptable.
- The name of the copyright holder, a recognizable abbreviation for that name or a designation that clearly refers to the copyright holder (e.g., "the composer" on a score that identifies the composer as Sorabji elsewhere on the page).
- First published (as of 2023) in 1927 or earlier, anywhere in the world — always public domain in the US
- First published 1928–63 with a valid copyright notice, and renewal notice filed (would be listed in CCE) — copyrighted in the US until its 95-year term has expired
- First published 1928–63 with a valid copyright notice, but no renewal notice filed (would not be listed in CCE)...
- If first published or simultaneously published in the US (i.e., if copies were offered with authorization to anyone in the US within 30 days of the beginning of publication anywhere else) — public domain in the US
- If first published abroad, and NOT offered to anyone in the US for over 30 days from first publication — copyrighted in the US until its 95-year term has expired
- First published between January 1, 1928 and February 28, 1989, without a valid copyright notice...
- If first published or simultaneously published in the US (i.e., if copies were offered with authorization to anyone in the US within 30 days of the beginning of publication anywhere else) — public domain in the US
- If first published abroad, and NOT offered to anyone in the US for over 30 days from first publication...
- First published 1928–77 — copyrighted in the US until its 95-year term has expired
- First published 1978 or later — copyrighted in the US until 2058
- First published 1964–77 with a valid copyright notice — copyrighted in the US until its 95-year term has expired
- First published between January 1, 1978 and February 28, 1989 with a valid copyright notice — copyrighted in the US until 2058
- First published on March 1, 1989 or later — copyrighted in the US until 2058
the fact remains that, of Sorabji's c.105 extant works, many of which are vastly larger in scale than most of those early published ones and thus constitute almost his entire output - only 14 were published between 1921 and 1931, one was published in the early 1970s and all the rest not published until The Sorabji Archive began to do this from the 1980s. Moreover, although US copyright law happens to differ from that of most other countries and all of Sorabji's music remains in copyright in most of them until the end of 2058, we continue to receive and honour requests for copies of his scores, including those early publications, in both paper and .pdf format, from many countries including USA irrespective of its laws relating to those early publications.
It's true that a great deal of Sorabji's work remains copyrighted in the US. And so those works will not be allowed on IMSLP-US, except if permission is granted by the copyright holder, until whenever they do enter the public domain in the US.
All that said, the only Sorabji scores in PD in USA are those of the 1921-1931 publications and all of these contain no shortage of errors.
This is mostly right, but not precisely true. Copyright in the US, as in most countries (though the UK is a partial exception, which I'll get to a bit further down), applies to
original creative works, not to
publications per se. So, for instance, the autograph manuscripts of the Sorabji works which are in the public domain are not copyrighted in the US either, because they are copies of the same works of creative authorship.
New typeset corrected editions are gradually being prepared and, as soon as each of these becomes available, interest in the old publications themselves not unnaturally drops to almost zero. These new typeset editions are, of course, in copyright everywhere as their publication dates are all within the past few years. So far, of those early published scores, new typeset editions of Two Piano Pieces, Piano Sonata No. 2, Piano Sonata No. 3, Le Jardin Parfumé and Organ Symphony No. 1 have been available for some time and further ones of Fantaisie Espagnole, Trois Poèmes (for soprano and piano), Piano Sonata No. 1, Piano Quintet No. 1 and Opus Clavicembalisticum are currently in preparation; this leaves only Prelude Interlude and Fugue and Valse-Fantaisie for piano, Trois Fêtes Galantes (for soprano and piano) and Piano Concerto No. 5 not yet commenced.
Well, it certainly seems to me that (in general) there remains interest in examining historical publications of musical works, even after new critical editions are published. It
is worth mentioning, however, that, since some of Sorabji's works are in the public domain in the United States, someone could prepare and publish competing editions without the need for authorization, so long as they are only published in the US. Moreover, the pieces which are in the public domain in the US can be performed or recorded without authorization if the performances and/or publications of recordings occur in the US, even if the performances were made using the new editions.
Also, because of the notice requirements, any work first published in the 1970s up through February 28, 1989 could be in the public domain in the US — but only if the initial publication occurred without a valid copyright notice (see above) and it was initially or simultaneously put on offer in the United States. So, a work that was published by the Sorabji Archive in the 1980s, for example, could have lost its US copyright if there was no notice (including on a manuscript reproduction), or if the notice included was made in an improper format (e.g., by omitting the date),
and the score was made available for offer in the US at that time. (Certain omissions between 1978 and 1989 could be corrected within a time-limited window, but this is no longer possible, so any defective copyright notices made during that period which remained uncorrected during that window result in the work remaining in the public domain today, so long as the URAA did not apply.) I'm not saying that this
was in fact the case for any of the works offered by the Sorabji Archive, but it bears mentioning, because this is a relevant factor for US copyright law, despite the relative recency of these publications.
For most works created and published since 1978 (the exception being mainly "works for hire," according to the US copyright jargon meaning of that phrase), the publication date is not relevant for US copyright law. However, the date of death of the contributors is relevant, and for works created and published since 1978, US copyrights generally naturally last for 70 years after the author's death. The question, then, is who actually would be an author according to US copyright law. Sorabji himself certainly would be the author of all of his own works; his 70-year term expires in 2058, as we all know. Whether or not
editors of editions qualify as having made an authorial contribution to that publication, and the extent to which that authorship could be redacted as to make the engraving PD-US, is not entirely simple.
Almost all new editions are published with copyright claims. However, US copyright law restricts the copyright in a derivative work (as distinct from the copyright in any underlying work) to the significantly original new creative content originating in the new work. For example, a preface to a new edition has a new copyright which lasts for 70 years after the death of its author.
US copyright also does not extend to the underlying public domain work present in a new edition, even if the new edition has original creative content. So any performance made from a new edition, being a performance of the same underlying work of creative authorship, is not subject to any additional copyright restriction, whereas the same is not true of a performance made of a substantially original arrangement or adaptation. The US Copyright Office specifies that copyright in derivative works (including new editions with new content) applies only with respect to the new content. For musical editions in particular, the US Copyright Office says that editorial authorship may exist in certain additions made to a score: "Musical editing generally consists of adding markings for the performance of a musical composition, such as additional or altered fingering, accents, dynamics, and the like. Editing also may consist of textual notes on performance practice or historical background for a musical composition." However, note that the US Copyright Office explicitly says that corrections of printing errors from earlier editions cannot be considered a work of original authorship (in line with US case law).
Despite the fact that many editions probably would not have their copyrights held up as valid in court, the US Copyright Office does not generally judge the validity of registrations, and so they can be presumed valid unless shown otherwise. Even creative additions have been held in certain cases to not rise to the level of copyrightablity; the US has a higher threshold of originality than some other countries, especially (historically) the UK (— though the British threshold of originality may have raised over the years for unrelated reasons.) Many registrations are made with the explicit limitation that they only apply to new prefaces, new editorial additions, and so on. Removing these elements from a retypeset of a work that is in the public domain in the US would result in a document which, most likely, has no eligibility for copyright in the US, though I'm not a judge, and so I of course have no control over the validity of claimed copyrights — I am merely talking about what I've seen in US court decisions that I've read. (Notwithstanding the fact that some of these scores may be public domain in the US, IMSLP-US does not necessarily accept
new editions which were not submitted by or with permission of the editor, but that is a question of site policy.)
I should note that with respect to the threshold of originality (as opposed to copyright
terms), the United States is not unusual internationally, though all countries of course have different nuances to their laws. In the United States, new typesettings of creative works are not eligible for new copyright; this is very well-established. This is the case in most countries of the world. One of the very few countries where new typesettings
are eligible for copyright protection
as typesettings is the United Kingdom, where they are protected for a 25-year term. Even in the UK, however, it should be noted that performing from a new engraving is not considered distinct from performing from an old uncorrected one; the relevant detail there is that all of Sorabji's work is still protected by British copyright law in any case.
Of course, it is undisputed that many of Sorabji's works are definitely protected by US copyright law, and, in all those cases, even if new engravings with errors corrected would not have any
new original content, the
original copyrights still remain valid according to the usual rules.
One problem with the editing project for these works is that the autograph mss. of Two Piano Pieces, Prelude Interlude and Fugue, Trois Poèmes, Trois Fêtes Galantes, Piano Quintet No. 1 and Piano Concerto No. 5 are no longer known to exist; what became of them following their publication is unknown.
That much I'm afraid I cannot really say much about, though I will comment that, as someone who regularly goes through the work of many different composers (given my job), the Sorabji Archive is one of the better-organized resources on a single composer out there, and so I must say that the care taken by you and your colleagues to keep these things organized definitely shows.
One other wrinkle of US copyright law, as you may have been able to tell, is that it actually cuts both ways. While the early published works of Sorabji and works that failed to meet US copyright requirements (such as
Opus clavicembalisticum) are in the public domain in the US, despite the fact that he died not yet 35 years ago — and the same goes for the early works of many other composers, such as Dmitry Shostakovich — some the
later works by Sorabji may be protected in the United States long after their copyright has expired in the UK and most other countries. A work published in 1977 would not have its US copyright expire until 2073, for example, and one of the known Sorabji works (the
Pastiche on the "Minute Waltz" by Chopin), apparently first published in 1969, will not enter the public domain in the United States until a few years after it enters the public domain in the UK along with all of Sorabji's other compositions and writings.
As you can tell, the copyright rules can be pretty complicated, especially for the US. If you have any questions, let me know here or at
dbmiller@imslp.org and I can try to provide answers.
***
As for Sorabji's works: the works currently listed on his IMSLP page are confirmed to be in the public domain in the US.
Opus clavicembalisticum is PD-US for the reasons mentioned above. The other works were all published before 1928 and so any US copyrights on them have expired. According to the Sorabji Resource Site's list of publications, those would be all of Sorabji's works that were formally published before his father stopped funding the endeavor — so, all of those are now PD-US.
Based on the information presented on the aforementioned page, including the reproduction of copyright notices (very useful!), the
Pastiche on the "Minute Waltz" by Chopin, published 1969, should be PD-US in 2065. The
Fantasiettina sul nome illustre dell'egregio poeta Christopher Grieve ossia Hugh M'Diarmid should be PD-US in 2058.
As for items published by the Sorabji Archive... the Archive was founded in 1988. Assuming that it was offering scores to US-based recipients at the time of its founding, then any work that was first published by the Archive before February 28, 1989 — that is, works published within the first year of the Archive's existence — would be required to have followed all the rules then in place for valid copyright notices in the US. If it were demonstrated that the Archive offered scores to US-based recipients then,
and that a work was made available without all the elements of a proper notice
during that period, then I would approve that work to be listed as PD-US. But I would need to see evidence of that.
Assuming that a notice error in 1988–89 did not happen, in all likelihood, the list of Sorabji works that IMSLP-US has will be it for quite some time. When it comes to the works that
are confirmed as PD-US, though, IMSLP-US will continue to accept new editions or recordings that are prepared by anyone, normally only so long as the editor/recording rights owner has given permission (in line with the general rules for the site). All submissions of works that are not PD-US will be rejected unless permission is granted from the copyright holder.