Avoiding problems with public domain music

You’ve found a lovely piece that you’d like for your choir or chorus, and it’s centuries old ... so it’s public domain music and you’re all set, right? Maybe. I mentioned (in part 1) that there were a few things that could trip you up. To avoid problems with public domain music, make sure you can answer these questions:

(Ahem — if you just want the damn sheet music, you can go straight to the free sheet music page.)

Is the work a copyrighted arrangement (or other derivative work)?

The owner of a copyright in a musical composition has the exclusive right to create new works that are based on that piece — those new works are called derivative works. Anyone who wants to make a new version of the piece, by adding new harmony or lyrics, say, must get permission from the copyright owner.

But anyone may make a derivative work based on public domain music. You don’t need permission. Here’s the catch, though — what you think is public domain sheet music may in fact be a copyrighted derivative work. How so?

Let’s say someone arranged or adapted a copyright free musical piece for other voices or instruments, or for another musical style. Their arrangement may be copyrighted if the changes contain at least a minimum amount of creative musical expression and they weren’t copied from another source.

A minimal amount of creative musical expression? Huh?

Note: The case is Feist Publications, Inc. v. Rural Telephone Service Co., 490 U.S. 340 (1991). You can read it here if you’re interested.

What’s a minimal amount of creative expression in an arrangement of public domain music? As you might guess, that’s hard to say ... but there’s a US Supreme Court case that can help (even though it’s not about music).

In that case the Court found telephone white pages to be unoriginal because the arrangement of the pages was “entirely typical,” “garden-variety,” and the “practically inevitable” result of an “age-old practice, firmly rooted in tradition.” So? Well ...

If the changes or additions made to the public domain music are conventional, or there weren’t many choices available to the person who made them ... chances are the derivative work doesn’t merit its own copyright.

So, do you think doing any of the following would get you a copyright?

Yep, they most likely would be copyrightable. But while the new material in these works would be protected by copyright, the original works would remain copyright free music. They would stay in the public domain.

What about new editions of public domain music?

New editions of public domain sheet music that add substantial new work such as historical information about the music, the composer, or the time period during which the music was written are also copyrightable derivative works. But again, only the new material would be protected — the original copyright free music would remain free for all to use.

Not all changes or additions to public domain sheet music are copyrightable

Now don’t you go thinking that all changes made to public domain sheet music are copyrightable. Although you’ll definitely come across reprints of public domain music where the publisher claims copyright ... such claims are (say it with me) bogus. New editions that merely reprint public domain sheet music are not copyrightable. Making an exact copy is a mechanical act, not a creative one.

But what about changing the typeface, or adding a new typeface? That won’t create a copyrightable work, either — in the US, anyway. In the US, reprint editions of public domain music, no matter how beautifully typeset (and no matter how much effort went into the edition), are simply not copyrightable. Useful, yes. Helpful, yes. Copyrightable, no.

Other types of changes or additions to public domain sheet music that aren’t copyrightable include:

There are no hard and fast rules here, alas, and plenty of room for argument. In some cases a derivative musical work as a whole may be copyrightable, even though the individual changes, taken separately, wouldn’t be.

In other cases only a musicologist would be able to tell you if the changes made (for example, added harmony) are original enough to be copyrightable. But still, examples abound where music publishers claim copyright — fraudulently — in public domain sheet music. Don’t let them intimidate you.

So how should you handle arrangements of public domain sheet music?

Since it can be hard to determine what is and isn’t a copyrightable arrangement, the best way to avoid problems is to use the original public domain work. And because we know that mere reprints of public domain music aren’t copyrightable, they’re not a problem. Even if the sheet music is from a later edition, if it is identical to the original go ahead and use it.

But what if it’s not a reprint? What if all you can get is an arrangement? If the publisher hasn’t stated what changes were made (look on the copyright notice page or in the introduction, if there is one), look for them yourself. Are they copyrightable changes or did the publisher merely add chord charts or conventional dynamic markings? You’ll have to make an assessment, of course, and the more familiar you are with the original piece, the better.

What if you’re not sure if the changes are copyrightable, or you think they may be? Back to the bottom line: don’t use the new stuff. Block it out. The copyright in a derivative work doesn’t affect the original’s copyright or public domain status. So go ahead and make one copy, block out the additions, and use that. (A single copy made only as a step to gain access to the public domain material should be considered a fair use.)

And you can always copy the original public domain composition yourself, by hand or by using music notation software like Finale or Sibelius.

Is the work part of a copyrighted compilation?

Even if the sheet music is in the public domain, be careful if it’s part of a collection (also called a compilation).

A compilation is a work created by selecting, organizing, or arranging previously existing material in such a way that the resulting work as a whole is an original work of authorship. A folio of selected public domain blues songs would be copyrightable as a compilation as long as it is minimally creative — which it probably would be, since someone had to choose which songs to include.

Note: If the compilation is made up of fewer than four items it won’t be eligible for copyright. Generally, the greater the amount of material from which to select, coordinate, or order, the more likely it is that the compilation will be protected by copyright.

You can copy the individual public domain compositions in the collection, but not the collection itself. For more info see the compilation page of the tutorial.

Has the work’s copyright been restored?

Here’s the last gotcha, and it applies to one class of works only. (It’s a large class, though.) On January 1, 1996 copyrights were restored for certain musical works that were first published outside the US, and were in the US public domain as of that date. So if the work was first published outside the US from 1923 through 1989 and you think it’s in the public domain (or you’ve heard that it is), you’d be wise to check.

For example, all the music that was published in the Soviet Union before 1973 used to be in the public domain because the US and the Soviet Union had no copyright relations. Not anymore. Works by Shostakovich, Prokofiev, Khachaturian, and others have had their copyright restored. For more information on copyright restoration and how you can find out if a work’s copyright was restored, see the copyright restoration page of the tutorial.

Knowing what the pitfalls are can help you avoid them, and being able to recognize a bogus copyright claim will enable you to use what rightfully belongs to you (the public domain). Good luck, and don’t let anyone push you around.

Now ... use what you’ve learned on these free sheet music sites.