Copyright questions

November 12, 2019, 4:01 PM · My son is supposed to play on a radio show in about a month and he was going to play Ravel's Tzigane. We were informed today that he can't play it because it is still under copyright in the US...the show won't let you play anything published after 1923 or under copyright. Luckily, he has a bunch of other repertoire ready that he can choose from.

I know nothing about copyright law when it comes to performing. Can someone explain this to me? Are we violating the law every time he performs the piece for a competition or student recital?

Replies (26)

Edited: November 12, 2019, 5:30 PM · Wow, that's an interesting one. I would have thought that the copyright applies to the reproduction and sale of the score, and that when you buy the score you are granted permission to play it having paid royalties to the composer and publisher via its purchase, and that is perhaps true for personal use, but not so for public performance. A little research led to this link which provides useful information on the subject.
November 12, 2019, 5:40 PM · its because its on the radio, I think.
November 12, 2019, 7:27 PM · This is specifically "performing rights", which is a subset of copyright law. Performance on the radio falls under the "transmission rights" clause within performing rights law.

School/educational and primarily friends-and-family performances normally do not require securing performing rights. Free performances from all-volunteer nonprofits are also normally fine. So in general, students are going to be safe for ordinary performances.

For radio, though, they need to license performance rights for works under copyright. Tzigane is 1924; surprised that it's still within copyright. (Steamboat Willie is 1928.)

November 12, 2019, 7:35 PM · Funny, first you pay a fortune for Tzigane or anything else French. It's too big to fit in your music drawer.
And in the end, they won't let you play it.
November 12, 2019, 9:17 PM · Thank you all so much for the information--that makes a whole lot of sense that is primarily about the broadcast and not just the performance.

And @Scott Cole -- 100% that! We had to order Tzigane from Europe as it is near impossible to find in the US. The paper size is huge and fits in nothing! Hopefully he will eventually get to play it, though!

November 12, 2019, 9:26 PM · Must be a French thing. I've got a trio by Jacques Ibert and it's on huge paper. Maybe George Bush was right about "freedom fries."
November 13, 2019, 5:20 AM · I'm not a lawyer but I have done a lot of research into copyright law as it pertains to musicians.

The U.S. copyright law is available to download and read from the copyright office of the Library of Congress. https://www.copyright.gov/title17/

Works from 1923 are now in the public domain in the U.S. When the U.S. Copyright law was rewritten in 1976 it extended the term for all works which were either in their original copyright 28 year period or in their renewal period for a total of 75 years, while making the new copyright term be life-plus-50. Then the Sonny Bono law extended all that to 95 years for the works already under copyright and life-plus-70 for new pieces.

So works copyrighted in 1923 were extended through 2018. On January 1st of 2019 those pieces entered the public domain in the U.S. (1923 + 95 = 2018) And unless new extensions are enacted by Congress, works from 1924 will enter the public domain in the U.S. on January 1st, 2020.

Copyright law covers printing and distributing, recording, public performance, broadcast, use in TV/Movies/StagePlays, arranging.

Public performance where no admission fee is charged and the work is performed by people who are not getting paid (including the conductors, custodians, theater manager) are allowed, but if anybody gets paid then performance royalties must be paid. For most public performances and broadcasts in the U.S. that is done through ASCAP or BMI or SESAC. Most other countries have a single performing rights organization. In the U.S. it is the performance venue which is supposed to have blanket licenses from those organizations. If the venue doesn't have the license, then it is the concert promoter who is supposed to have it. If the promoter doesn't have it, then it is the performer who is supposed to have it.
I'm quite surprised the radio station where your son is supposed to play doesn't have the necessary broadcast licenses which would allow it to broadcast copyrighted music. Especially since under a recent rewrite of the U.S. Copyright law, copyright now exists in the sound recording separate from the copyright in the musical work contained on the recording. So practically any records it plays on the air are protected by copyright.

Is it an all-talk (no music) radio station?

And even though your son may have a lot of music which is old enough for there to be no copyright on the music itself, the edition he is playing from may be copyrighted.

November 13, 2019, 6:51 AM · Thank you, David, for the detailed explanation. So if he played the piece a month later in 2020 it would be OK. How crazy is that?

The radio station is a major classical radio station in a major city. The requirement is apparently specific to the one program he is playing on, which is a program for emerging young artists performed live. It seems to have to do with the live performance -- the station can play anything commercially recorded.

November 13, 2019, 9:06 AM · Sorry to hear that.

I am pretty sure your son gave a good amount of effort for this particular occasion. As you still have a month, did you check about acquiring the said right in terms of cost and availability before the performance?

I don't know anything about these things; but the hassle might come up insignificant against letting your son's efforts go to waste.

November 13, 2019, 10:19 AM · One of the problems in obtaining such a right is that it involves knowing the listening audience size of the radio station, and the performing rights organization, most likely ASCAP in the case of classical pieces, has pre-set rates depending on audience size and whether or not the performance is also streamed on-line.

Blanket licenses, which is what the radio station would have for it's normal broadcasts, are a much better bargain than single-work, single-broadcast licenses.

And I think any purchase of said license would have to be done by the radio station since they would be the ones on the hook for any penalties for broadcasting it without a license. The radio station has made it clear that they don't want to be bothered with such things. And it may not be only the cost -- the paperwork and bureaucracy involved in obtaining such licenses can take longer than there is before the performance.

Better for your son to play another piece in his repertoire this time, something that is clearly in the public domain, and then start performing the Ravel all over the place next year.

This is one of the major reasons that the preponderance of orchestral music performed by most orchestras is all from dead Europeans from the 17th, 18th, 19th and very early 20th centuries -- it's all free to perform without hassles and without extra expense.

November 13, 2019, 3:26 PM · Makes me wonder how the producers of "From the Top" manage the copy/performance rights issue? Then again, they are on Public Radio so perhaps there is either the blanket license or and exemption.
November 14, 2019, 5:14 AM · There are very few exemptions so it is most likely that they have the blanket licenses. Copyright owners can give permission for a work of theirs to be used without payment of performance, broadcast or streaming royalties. So a composer, assuming they haven't assigned control of the copyright to their publisher, can allow such a performance without payment if they so choose.
Edited: November 14, 2019, 7:09 AM · I think its a little late to ask Ravel for permission!!
November 14, 2019, 8:47 AM · The radio station probably has a blanket license for recorded music, and whoever published the recorded music tracks almost certainly had rights clearance to make and then sell the recordings. So not that odd for a radio station to be unable to cope with live music...
Edited: November 14, 2019, 9:43 AM · Who currently owns the copyright in a recently deceased composer's works? Because it is that owner of the copyright whom you should have to ask permission of. Is it, for example, a family descendant, his estate (in the legal sense), or the current publisher?

As a side issue, I believe I am correct in saying that if a deceased composer's unpublished work (the existence of which may otherwise be unknown to the public) is kept from publication by his estate, then, when it is finally released for publication its term of copyright will be from the date of publication. This has happened with some literary authors, and perhaps even composers. I wonder if there are any of Paganini's compositions still awaiting publication and subsequent copyright - his 6th violin concerto for example appeared within my lifetime.

A related issue is, what is the copyright situation if, for example, a hitherto unknown or lost work by an 18th composer is discovered in an old library? Haydn and Mozart come to mind. When that work gets published, who owns the copyright? Is it the owner of the library, the person who discovered it, the person (perhaps the same one) who puts in a lot of skilled editorial work to make the work presentable for publication, or the publisher?

Disclaimer: although most of my working life was as a patent attorney, my remit and training did not include literary or musical copyright matters. If any such ever turned up on my desk they would immediately be forwarded to a specialist lawyer.

November 14, 2019, 9:59 AM · Individual approval is not going to be possible in this situation, as the station would have to do it. He will just play the Ravel for a bunch of things after 1/1/20. For this, he's probably going to play Fritz Kreisler's Recitativo and Scherzo, which better be OK since it is from 1911. It's one of his pieces he can pull out and play when you need something short and nice. Given the restraints -- one month notice, <8 minutes, written before 1923 -- it is a bit challenging to find something. In addition to the radio performance, he's soloing with two different orchestras on two different pieces (Vieuxtemps Concerto #5 and Winter from the Four Seasons) within the first two weeks of December, so he doesn't really have time to polish something else up.

It seems there are a lot of vague copyright issues when it comes to performance. It's probably something we all should try to understand better. There just doesn't seem to be much info out there that is classical-specific.

November 14, 2019, 4:40 PM · Kreisler died in 1963. Add 50 or 75 years, according to the country...
November 14, 2019, 6:41 PM · In the U.S. something Kreisler published/copyrighted in 1911 is in the public domain since the copyright and its renewal would have expired before the 1976 rewrite of the copyright law in the U.S.

So your son should be all set.

http://www.gcglaw.com/resources/entertainment/music-copyright.html
is a web site which can explain a lot about copyright in the U.S. Mainly as to how it pertains to copyrighting music that a person creates but reading it can clear up some questions and might raise some others but will give a person some terms to do further searching about. Copyright is copyright and isn't specific to any single genre of music.

November 15, 2019, 7:30 AM · Er, David, from the link you just gave, I find this:
"The copyright will continue to protect the composition for seventy years beyond the life of the author."
November 15, 2019, 7:52 AM · I believe the 70 year thing is only for works written AFTER the law was passed.
November 15, 2019, 10:26 AM · Those of use who download scores from IMSLP will doubtless have read this warning notice that comes up on the screen before you go ahead with the download:

<< Works by this person are most likely not public domain within the EU and in those countries where the copyright term is life+70 years. They may also be protected by copyright in the USA, unless published before 1924, in which case they are PD there as well. However, this person's works are public domain in Canada (where IMSLP is hosted), and in other countries where the copyright term is life+50 years.
IMSLP does not assume any sort of legal responsibility or liability for the consequences of downloading files that are not in the public domain in your country. >>

That seems to summarise the current situation fairly concisely.


November 15, 2019, 4:54 PM · Susan is right -- that protection of life plus 70 years is for works which were created after 1976 in the U.S. Older works which were still protected by copyright when the 1976 law went into effect were granted a total of 75 years under that law (up from the 56 of the original copyright period and the renewal period) which was later extended to a total of 95 years with the Sonny Bono / Mickey Mouse law. So works originally published in the U.S. in 1923 are now in the public domain in the U.S. Works from 1924 will enter the public domain this coming January 1, 2020 at 1 second after midnight.
Edited: November 22, 2019, 4:53 PM · The bottom line is that it is well and truly time to take legislatures to task for the ridiculous reach of copyright laws.

It is one thing to protect the ownership and moral rights of a creative artist, but even the right of an artist to have such extended claims to financial return from a creative work is simplistic. If people cannot even play the work, there is limited audience mass, and financial gain for everyone is curtailed.

The intrinsic reward for providing culture with an admired artistic work should also be valued properly.

I find it curious that if you make a discovery in medicine or electronics or engineering, you are protected by patents for about five years or so, after which "generic" drugs can be manufactured by other companies, or your same invention can be mass produced by the competition, etc. But, a piece of music, written to be played …?

Finally, don't play or sing a song made famous by a some musician: you are thereby making an "adaption", and breaching copyright.

Copyright is a matter made mad by lawyers, not artists.

November 23, 2019, 4:43 AM · U.S. Patents are 20 years. That term was settled upon because most inventions had been replaced by newer inventions (with new patents) by the time 20 years had expired. However drug companies are pushing hard to get the patent term extended much longer so they can continue to profit more and keep generic versions off the market.

It's easy as consumers of creative content to be upset at the monopoly that copyright gives.

But consider "real" property as opposed to "intellectual" property.
If you build a building which houses something to which people have to pay admission to enter (amusement park, museum, whatever) you can continue to earn money from that building for as long as you live and your descendants for many generations to come (far greater than the copyright term of "life plus 70 years") can continue to reap profit from that building and there isn't a point defined in law that says "after a certain period the ability to earn income from that building will end and public can ever after use that for free."

Why do we feel that for creative things that same right shouldn't exist? Why do people feel that the creator shouldn't be able to have their descendants earn money from that creation for a longer period than a mere 70 years after the creator's death?

Just because you like a song doesn't give you the right to somehow wrest it from the hands of the songwriter just because you want to use it without paying for it. Any more than you can say to the Disney corporation that you should be able to go to Disneyland for free, 70 years after Walt Disney died.

Copyright and patents were both created with the same concept in mind -- that for a limited time the creators could exclusively control their creations but after that period it was expected that society would no longer need those protected works or care about them because new creations would come along that would replace them.

When the U.S. Constitution was written, nobody played music that was 50 years old or 100 years old or 200 years old. Yet now the classical music world is full of performances of music that old and older. Much to the detriment of modern, living composers.

When Beethoven was composing, each concert was expected to be filled with NEW creations, not older works, even by him. And certainly nobody expected a Vivaldi concerto at any concert during Beethoven's life. People back then were not concerned with the music of the past, they wanted CURRENT stuff.

Fast forward to our time, and at least in the classical world, people want older stuff far more than current stuff. Even in the pop music world, Broadway is full of revivals of musicals from the 40s, 50s, 60s. There are many classic rock stations playing music that is 50 years old.

So the people who own copyrights, seeing the greater lengths of time that people want to enjoy the copyrighted materials, have wanted to continue to earn money from their creations.

I was listening to a radio interview with Eubie Blake shortly before he died at age 96. His compositions from his early life had been protected only by the initial copyright term of 28 years and a renewal period of 28 years, for a total of 56 years. The interviewer was asking about Mr. Blake's early compositions such as "I'm Just Wild About Harry" and Mr. Blake, with a very sad voice, said "You don't know what old is until songs you've written pass into the public domain."

Now why shouldn't he, at age 90-something, have still been able to earn royalties from something he wrote in is 20s or 30s? And why shouldn't he have been able leave a legacy to his children and grandchildren and great-grandchildren whereby they could earn income from his creation? If your great-grandfather had built an apartment building 120 years ago you would still be able to charge rent and you could leave that building to your children and their children until the building fell down and the municipality would have no legal write to say "your great-grandfather died 70 years ago so you no longer can charge rent for that building -- we're going to let people live there for free."

Why should a popular song be any different?

And by the way, you have oversimplified the protections that copyright gives -- you can perform the songs you want. You can record the songs you want. You just have to pay for that privilege. Just as you would have to pay to rent the concert hall you wanted to perform in. And pay the electric bill to run your amplifiers and microphones and recording equipment.

Why is it that the creators of the very material which make concert halls desirable are vilified for wanting to earn money for their material being used?

Nobody is ever forced to use copyrighted material -- if you don't want to pay to use a song, don't use it. Write your own. Except that for most of us writing a hit song isn't easy and won't happen ever. So we use material created by people who are better at creating it than we are. But for some reason we begrudge them the ability to earn money from the very material we want to use.

November 23, 2019, 7:32 AM · Most certainly, I have not "oversimplified the protections that copyright gives".

If you take up your banjo at a sporting club campfire and play "Ashokan Farewell", you will breach copyright. You have changed the original, simply by performing it, and you have made an adaption. Naughty you. You haven't paid the copyright owner.

If copyright law was truly enforced, the ridiculous reach of copyright music would be apparent.

Each of us has to pay to play the copyright piece, and (indirectly) to even listen to the piece.

(Similarly, if you look over the shoulder of a fellow train traveller, and read a few paragraphs of a newspaper or magazine, you are breaching copyright.)

I write music, and have six string orchestra works published or accepted for publication. I will probably earn 2/5ths of nothing for the publications. But, I have heard some of these played in concert, and it was a tremendous reward.

Once you write music and offer it to the public, you are contributing to the culture of your community. A suitable reward is appropriate, and can be attained through businesses that ride upon your contribution. But the community should not have to pay endlessly for participating in the culture … and 75 years is endlessly, in my book.

It is not a question of writing a "hit song", and trying to scoop up every dollar you can. It is a question of recognising the reward you get by having your music performed, and accepting your place in culture.

Current copyright laws turn all musicians into law-breakers, at some point.

November 23, 2019, 11:02 AM · Perhaps not really relevant to this copyright discussion but there is one intellectual property right that can last forever provided you keep paying the renewal fees when required - the registered trademark. It is fair to say that a good trademark will often earn you more than you'll get out of time-limited patent and copyright protections for the same product.

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