Notable copyright issues

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George Gershwin

Question	Is music by George Gershin in the public domain? or Can I arrange or transcribe Gershwin's music and publish it on Score Exchange?
Quick answer	No

 

More details

Under regular circumstances you would expect that music by George Gershwin is out of copyright and in the public domain, as he died more than 70 years ago. However in this case this is not true. The main reason is that a lot of George's work was accompanied by lyrics written Ira Gershwin, who did not die until much later (1983). This clearly means that the lyrics are in copyright - this is not questionable. However you might well expect the music without lyrics to be generally available.

We at Score Exchange have spent a great deal of time, and effort to track down the current, actual copyright status of George Gershwin. This is the information that we have found:

1. As Score Exchange is based in the UK, UK law applies. This means that the situation might well be different in other countries. It also might mean that music that is allowed in the UK is not suitable for consumption in other countries.
2. In the UK, lyrics and music are treated as two separate 'works' for copyright purposes. This means that music of songs can be in the public domain before the lyrics or vica versa.
3. Amendments in 2011 to the EU copyright directive (2006/116/EC) will make co-written work, such as songs with music by one person and lyrics by a different person, treated as a single work for copyright purposes. This means that such works will not become public domain work until 70 years after the last surviving co-author dies. You can see an EU press release about this here. (see the section on co-written works near the end)
4. The directive from 2011 has not yet been incorporated into UK law. The UK parliament has until November 2013 to do this.

Initial conclusion

Based on these facts, and the legal advice we have received about music and lyrics of songs generally, these points would add up to mean that the music written by George Gershwin is currently in the public domain as long as it used without lyrics by Ira Gershwin. Then at some point before November 2013 as the EU directive amendments are adopted into UK law, it will no longer be in the public domain until 70 years after the death of Ira Gershwin (2053).

However...

During some final checking with the Music Publishers Association, we are told that the music of Gershwin is an exception to these rules, and is still covered by copyright, in the UK, and Europe (we don't have currently have information for the rest of the world). In Europe this copyright is administered and licensed where appropriate by Faber Music on behalf of Warner/Chappell who, as far as we are aware handle the rest of the world.

Final conclusion

At the time of writing (23rd January 2012) we're still trying to reach someone at Faber Music to discuss the current situation, but as far as we at Score Exchange are aware, music by George Gershwin is currently not in the public domain. Therefore, if you wish to publish your arrangement of any Gershwin music on ScoreExchange.com you must first obtain written permission from either Faber Music in the UK, or Warner/Chappell in the rest of the world.

Further information

If you have any other information that would help to clarify anything that we are saying here, we would like to hear from you - please contact us.