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Public Domain

11/19/2013

4 Comments

 
Picture
© 2013 Jonathan Minkoff

Arrangers, especially in a cappella music, are always looking for songs to arrange. And once they make an arrangement, especially a good one, those arrangers are often asked for copies. What should they do?

Some give away the arrangements, some sell the arrangements. But, unless the arranger has permission from a composer, selling or gifting copies of arrangements is illegal. 

Thankfully, there is an exception: The Public Domain.

Works in the Public Domain are free for anyone to use in any way they choose. You won't need to make any payments, and you won't need anyone's permission. The trick is knowing whether a particular published song is actually in the Public Domain or not. 

The chart below can go a long way towards helping you determine the answer. All you need to know to begin, is when the work was first published. Once you have that, you're off!

Public Domain Chart for Works Published in the United States

DATE PUBLISHED


Date copies first sold or otherwise distributed to public.
STATUS



Is the work in the Public Domain, or protected by Copyright, or is the answer unclear?
TERM



How long does copyright last?
NOTES



What should I do?

1922 OR EARLIER
PUBLIC DOMAIN
N/A 

The work is no longer protected by copyright.
Congratulations! 

Do anything you like and pay no one. 
Arrange, sell, distribute, perform, display, transpose and interpret to your heart's content.

1923-1963
RESEARCH NEEDED
If published w/out © notice and not remediated w/in 5 years then in Public Domain now.

If published with notice, © term is 28 years. (Entering Public Domain between 1951-1991)

If published with notice and  © was properly renewed, term is 95 years, due to 28 year term plus 67 year renewal term. (Entering Public Domain 2018-2058)
Danger! 

This requires professional research and simple math.

There is no easy answer here. Each case has to be carefully researched.

Alternatively, you can play it safe and just treat the work as if it was protected by copyright.

1964-1977
RESEARCH NEEDED
If published w/out notice and not remediated w/in 5 years then in Public Domain.

If published with notice, term is 95 years, due to 28 yr term
plus AUTOMATIC renewal of 67 years. (Entering Public Domain 2059-2072)
More Danger! 

Unless the authors failed to affix copyright notice and failed to remediate, this song is NOT in the Public Domain.

Only the rarest of songs from this period will be in the Public Domain.

1978 - PRESENT
PROTECTED BY COPYRIGHT
The copyright term lasts for the life of last surviving author, plus 70 years.

Copyright notice not required.

Renewal not required.

Even assuming that the last surviving author died immediately upon publishing in 1978, the first time the work will be in the Public Domain is 2048.

Extreme Danger! 

Copyright protection is almost definitely in full force. 

To use a copyrighted  musical work without payment or permission, you need to qualify for fair use.

To record your own arrangement of any copyrighted musical work without permission, but with payment, you can use the compulsory license.

You can license a copyrighted work directly from any author. In extremely rare cases, you might take advantage of a creative commons license, if the author has issued one.
  

The Chart Isn't the Whole Story

Here's a shocker: hire an attorney to handle any of the complicated issues. This chart covers basics, but it doesn't address corporate copyright, all the differences between published and unpublished works, orphaned works, jurisdictions outside the US, or any number of other topics. But, more often than not, the simple chart above will lead you to an answer you can use. 

Thanks Uncle Sam!

BONUS POINTS! If the work you're interested in pillaging was written by a US Government official in their work capacity, then it's automatically in the Public Domain, regardless of when it was published. Of course, the US government hasn't authored too many songs, so this may be of limited use to you. On the other hand, you just might mine those Presidential speeches for some good lyrics!
4 Comments
Ernie Pym
12/19/2013 10:11:59 pm

Please disregard this if you've posted an article on it previously...but I was wondering what you have to say regarding obtaining rights to perform songs on U.S. television. You have a number of postings referring to public performances and the legality of arrangements--but I don't think any of those postings specifically talk about what it takes to perform copyrighted songs on TV.

I am mainly asking with respect to obtaining rights to perform songs on a show like The Sing-Off.

Reply
Ernie link
12/21/2013 12:26:33 am

Great question. When syncing picture to sound in any form, you need a sync license. That simply means the permission of a composer or publisher is required. The composer can say no or demand any price. But in practice, many composers are signed to labels and the labels may grant certain stations blanket sync licenses. This usually allows the station to know for certain that they have access to use certain songs, while negotiating for the other ones. Artists tend to want to have their songs covered as it provides them income and helps boost their fame. The more popular and irreplaceably appropriate a song is, the more the composer will charge. Costs can even vary for the type of use: sung by a character in the show; theme song; far in the background, etc. I hope that helps!

Reply
Adam link
7/23/2015 02:00:04 pm

I have a couple of questions regarding recording mechanical licenses of public domain works and non-public domain works. For example, if I do my own transcription of a public domain piece (it was originally for clarinet and piano and I just transcribed the clarinet part to saxophone) and I wanted to release a recording of it, do I have to pay for mechanical licenses to anyone? Am I also free to sell a self-published edition of my transcription? I haven't taken out or changed a single note in the entire piece except to transpose the part for a different instrument, but I also have not yet copyrighted my transcription. Are there mechanical licenses required for original public domain works or can you release recordings of them and not have to pay anyone anything?

I think the thing I'm most confused by as well is if there is a legal difference in the definition between transcription and arrangement or if that doesn't even matter when it comes to public domain works. How does that change if the original work is not public domain? Specifically, when recording my own unpublished arrangements or transcriptions of non-public domain works, how do the mechanical licenses work for those instances (particularly if I have not copyrighted my transcriptions or arrangements)?

Thanks so much for the help!

Reply
Jonathan Minkoff
7/24/2015 12:35:21 am

Adam,

To address your questions: if the work is in the public domain you do not need to pay mechanicals to record your arrangement or transcription of the work. You are free to sell this arrangement if you wish without license or payment to anyone else.

Just remember, others would be free to use any part of your arrangement which is made of public domain elements.

So if you merely transcribed the original, you could sell it and others could then copy it freely. No licenses are required at all from anyone.

The more originality you add, the more your arrangement of a public domain work becomes copyrightable in and of itself. That gives you protection for your original contributions. But the elements in the public domain are always free for anyone to use.

Regarding arranging songs which are NOT in the public domain, I recommend this article: http://www.acappella101.com/home/the-legality-of-arranging

Good luck!

Jonathan

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