Notable copyright issues
General copyright guidence
When you're publishing music on Score Exchange you need to make sure that you're not breaching any copyright rules or laws. This is a general guide to how copyright works - what is and isn't allowed. This isn't legal advice, so if you have any doubts at all, make sure you get professional advice.
General principles of copyright
A work that is in copyright means that the person who owns the copyright to it is entitled to benefit from their work. Something that is not in copyright is said to be in the 'public domain'. In general you are free to use anything in the Public Domain for your own purpose.
If you want to make use of any work that is covered by the copyright of anyone else, then you need to get permission first. Copyright is an automatic right - the act of creating something means that copyright exists - anything that you create from scratch is covered by your copyright. If you ever need to prove that you created something that that might be a different matter, but copyright exists as soon as you create something.
Copyright lasts for 70 years after death. In some countries the time period is less than 70 years, but Score Exchange is based in the UK, so we follow the UK laws where it's 70 years.
Applying copyright general principles to composing and music
If the original composer is still alive, or died less than 70 years ago their copyright still applies so you would need to get permisson to use their work. e.g. the theme tune from the Star Wars film written by John Williams.
An original work is in the public domain, if the original creator died more 70 years ago, e.g. original work by Mozart or Beethoven. You are free to use their work as you wish.
...any new arrangement is covered by the arranger's copyright until 70 years after their death. This means that you should always try to track down a transcription of an original work before starting new arrangements.
Example: I arrange Beethoven's 5th symphony for a piano in a Blues style (!). You can't use my new piano arrangement without permission until 70 years after I die, but you can use Beethoven's original work.
... new editions are also covered by the copyright of the editor. An edition is an original work, with different mark-ups or other minor corrections.
Example: You have a printed score of a Violin concerto by J. S. Bach. There's a good chance that the person who prepared the score for printing has added bowing, fingering and phrasing markings to the music. This makes it a new edition that is under their copyright. The original music is in the public domain, but the new additions are not, unless the editor died over 70 years ago.
How to get permission to use copyrighted works
The current copyright owner needs to issue with a license to use their work. This might be as simple as just asking, but in most cases you will need to pay some sort of license fee. Often the difficult part is finding out who the copyright owner is.
- A lot of music is managed by major publishing companies. Some of them provide handy online databases that you can search for copyrighted works. e.g: http://uk.warnerchappell.com/search-by-writer/
- Wikipedia has a lot of useful information, but bear in mind that it's very easy for anyone to edit Wikipedia.
- If you're a member of any professional musicians organisation then they are also a good place to get advice.
Common errors that we've experienced on Score ExchangeI didn't breach any copyright because I wrote my version by ear!
Wrong! Just because you didn't see the original work, doesn't mean that you are allowed to use it. You are probably not allowed to arrange your favourite film theme tunes 'by ear' without first getting permission.I don't know who the composer is!
That doesn't matter - it's your responsibility to make sure that the work you are using is in the public domain, before using it.
Score Exchange is in the UK. Your country might have a shorter term for copyright, but you still can't publish it on Score Exchange until 70 years have passed.
It might be the case that no one will notice if you use copyrighted work without permission, but that's not the point of a law. If you could get away with murder, does that make it OK?
|Question||Is music by George Gershwin in the public domain? or Can I arrange or transcribe Gershwin's music and publish it on Score Exchange?|
|Quick answer||Probably not|
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 Gershwin's case there is an extra complication - a lot (if not most) 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:
- 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.
- In the UK, lyrics and music used to be treated as two separate 'works' for copyright purposes. This means that music of songs could be in the public domain before the lyrics or vice versa.
- Amendments in 2011 to the EU copyright directive (2006/116/EC) made 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)
- The directive from 2011 has now been incorporated into UK law.
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 work created by George Gershwin without Ira Gershwin's involvement is currently in the public domain.
Any work that was co-written with Ira Gershwin whether in terms of music or lyrics, is still covered by Ira's copyright until 2053.
Final conclusion for now
At the time of writing (4th February 2015) Faber Music, have yet to provide us with a definitive list of works by either Ira or George Gershwin that were or were not co-written with the other.
While we do not have a definitive list, Faber Music has confirmed that the following list of works, are solo George Gershwin works, and therefore are now in the public domain:
- “RHAPSODY IN BLUE”,
- “THREE PIANO PRELUDES”,
- “CONCERTO IN F (FOR PIANO & ORCHESTRA)”
- “PROMENADE” a.k.a. “WALKING THE DOG”.
Some time has passed and it's now October, 2017. We've been in contact with Faber again. They're still not able to provide us with a definitive list of work by Ira Gershwin, but the Warner Chappell website has a lot more information than it used to. This link should show a list of works where Ira is officially listed as an author: http://uk.warnerchappell.com/search-by-writer/GERSHWIN IRA (CA)
Based on this, our current advice about Gershwin's music is this:
- Check the link above to make sure that Ira Gershwin is not linked ot the work you wish to arrange and publish
- Use the same search system to try to make sure that the music you want is actually a solo George Gershwin work, rather than a collaboration with someone else.
If neither Ira or anyone else is involved in the original work, then there's a good chance that it's a solo George Gershwin work making it in the public domain and available to use without requiring a license.
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.
Works of co-authorship
The following information is from Lexology.com by Julian Bentley and Stuart Barry of Wan Turton LLP. You can also read it on lexology.com
The term of copyright protection in songs with lyrics, where the music and words are written by different people, usually expires at different times, depending on the dates of death of the composer and the lyricist. The copyright in the music would expire 70 years from the death of the composer. The copyright in the lyrics would expire 70 years from the death of the lyricist.
An EU Directive, implemented in the UK with effect from 1 November 2013, changes this. The new law provides that where the music and lyrics of a song are composed and written in collaboration by different people, to be used together (a work of co-authorship), the term of copyright in each will expire at the same time. That is, 70 years after the death of the last surviving of the composer and lyricist.
This applies to works of co-authorship created after 1 November 2013 and to works of co-authorship where either or both of the music and the lyrics were in copyright at that date. For example, if the copyright in the music of a song had expired before 1 November 2013, but the copyright in the lyrics had not, the copyright in the music is revived as from 1 November 2013 and will expire 70 years after the death of the lyricist.
The owner of the revived copyright in a work of co-authorship is the same person or company that was the owner of the copyright immediately before it expired. But if that person has died or, in the case of a company, ceased to exist, the ownership of the revived copyright will revert to the composer or lyricist of the work or his or her beneficiaries.
There will be no infringement of the revived copyright by virtue of:
- Any act done before 1 November 2013 whilst copyright did not subsist in the work.
- Any act done after 1 November 2013 pursuant to arrangements made before that date at a time when copyright did not subsist in the work.
- Issuing to the public after 1 November 2013 copies made before that date at a time when copyright did not subsist in the work.