Interesting. I spent an hour or so doing various searches looking for court decisions and came up blank; I'm wondering if we're making a "mountain out of a mole-hill"? Can somebody find an instance of a music publisher suing somebody over such things? Like I say I couldn't find any with my average search skills; it would certainly be illuminating to see how the courts have ruled however. I'm wondering if fingerings and/or phrasing slurs are even copyrightable: is a suggestion on how to solve a technical problem copyrightable? If so, couldn't one copyright a golf swing? It starts to look ridiculous - which may explain the lack of easily-located court cases.
Just thinking out loud. M. On Sun, Jan 2, 2011 at 5:42 PM, Michael Ellis <michael.f.el...@gmail.com>wrote: > A few excerpts from the Wikipedia article on derivative works. > Highlighting and italics added by me. > > 17 U.S.C.<http://en.wikipedia.org/wiki/Title_17_of_the_United_States_Code> > § 103(b) <http://www.law.cornell.edu/uscode/17/103%28b%29.html> provides: > > The copyright in a compilation or derivative work extends only to the > material contributed by the author of such work, as distinguished from the > preexisting material employed in the work, and does not imply any > exclusive right in the preexisting material. The copyright in such work is > independent of, and does not affect or enlarge the scope, duration, > ownership, or subsistence of, any copyright protection in the preexisting > material. > > > US Copyright Office Circular 14: Derivative > Works<https://docs.google.com/viewer?url=http%3A%2F%2Fwww.copyright.gov%2Fcircs%2Fcirc14.pdf> > notes > that: > > A typical example of a derivative work received for registration in the > Copyright Office is one that is primarily a new work but incorporates some > previously published material. This previously published material makes the > work a derivative work under the copyright law. To be copyrightable, a > derivative work must be different enough from the original to be regarded as > a "new work" or must contain a substantial amount of new material. *Making > minor changes or additions of little substance to a preexisting work will > not qualify the work as a new version for copyright purposes. The new > material must be original and copyrightable in itself. Titles, short > phrases, and format, for example, are not copyrightable.* > > > When does derivative-work copyright exist? > > For copyright protection to attach to a later, allegedly derivative work, > it must display some originality of its own. It cannot be a rote, uncreative > variation on the earlier, underlying work. The latter work must contain > sufficient new expression, over and above that embodied in the earlier work > for the latter work to satisfy copyright law’s requirement of > originality<http://en.wikipedia.org/wiki/Originality> > . > > Although serious emphasis on originality, at least so designated, began > with the Supreme Court’s 1991 decision in *Feist v. > Rural<http://en.wikipedia.org/wiki/Feist_v._Rural> > *, some pre-*Feist* lower court decisions addressed this requirement in > relation to derivative works. In *Durham Industries, Inc. v. Tomy Corp.*[1 > ] <http://en.wikipedia.org/wiki/Derivative_work#cite_note-0> and earlier > in *L. Batlin & Son, Inc. v. > Snyder*,.[2]<http://en.wikipedia.org/wiki/Derivative_work#cite_note-1>the > Second Circuit held that a derivative work must be original relative to the > underlying work on which it is based. Otherwise, it cannot enjoy copyright > protection and copying it will not be copyright infringement. > > In the *Batlin* case, one maker of "Uncle Sam" toy banks sued another for > copying its coin-operated bank, which was based on toy banks sold in the > United States[3]<http://en.wikipedia.org/wiki/Derivative_work#cite_note-2> > since > at least the 1880s. (These toys have Uncle Sam's extended arm and > outstretched hand adapted to receive a coin; when the user presses a lever, > Uncle Sam appears to put the coin into a carpet bag.) The plaintiff's bank > was so similar to the 19th Century toys, differing from them only in the > changes needed to permit a plastic molding to be made, that it lacked any > original expression. Therefore, even though the defendant's bank was very > similar to the > plaintiff's,[4]<http://en.wikipedia.org/wiki/Derivative_work#cite_note-3> the > plaintiff's was not entitled to any copyright protection. "To extend > copyrightability to minuscule variations would simply put a weapon for > harassment in the hands of mischievous copiers intent on appropriating and > monopolizing public domain work." > > -------------------------------------- > > > Obviously, laws vary from country to country, but to me this suggests that > it would be very hard to assert a copyright claim to any set of of rhythms > and pitches that are already available in the public domain. I think that's > why I was having trouble with the concept that a copy of a chorale with a > mistake is a copyrighted work. > > Cheers, > Mike > > > > On Sun, Jan 2, 2011 at 8:09 PM, Michael Ellis > <michael.f.el...@gmail.com>wrote: > >> Thanks Graham, it's good to get the straight story! I must say there are >> certainly some confusing aspects to copyright law. So If I'm understanding >> you correctly, if I were to transcribe a fugue from an out of copyright >> source, I have a copyright if I make a mistake and none if I copy it >> perfectly! What if I transcribe from a copyrighted source and make a >> mistake (or a lot of mistakes)? Or copy from a copyrighted source only >> those aspects that exist verbatim in a non-copyrighted version, e.g. notes >> and rhythms as Bach wrote them but no dynamics or layout added by the >> editor? >> >> Anyway, I do appreciate the insights. For the time being I'm interpreting >> her publicly granted rights according to the notice on her web site, i.e >> free use for purposes other than financial profit. >> >> Cheers, >> Mike >> >> >> >> On Sun, Jan 2, 2011 at 6:51 PM, Graham Percival <gra...@percival-music.ca >> > wrote: >> >>> On Sun, Jan 02, 2011 at 12:59:39PM -0500, Michael Ellis wrote: >>> > We all seems to agree that: >>> > 1. The "music" of the chorales (the sequences of pitches and >>> > rhythms notated in the Breitkopf edition) is public domain. >>> > 2. The Breitkopf edition itself is also in the public domain. >>> >>> I haven't checked it myself, but if this Breitkopf edition is on >>> IMSLP, then yes. >>> >>> > 3. Margaret Greentree's XML files do not contain any copyright >>> > assertions other than for the PDF output. >>> >>> "Assertion" is completely irrelevant to the status of being under >>> copyright or not. If something would normally be under copyright, >>> then it is under copyright the instant that it is produced in >>> fixed form. (i.e. as soon as I type each letter of this >>> paragraph, it is under copyright -- even though I am not going to >>> append "Copyright (c) 2011 Graham Percival" to this email) >>> >>> > Given the above, it seems that an important question is whether her >>> > reservation of rights applies to distributing material created by >>> > applying LilyPond to the notation sequences embodied in her XML. >>> >>> No. The question is whether her particular rendition of the Bach >>> chorales in XML can be under copyright. If it is -- and I believe >>> it can be, especially since somebody noted that her rendition was >>> not completely accurate -- then all the XML files are under >>> copyright, and you cannot do (legally) anything with them without >>> her express permission (with certain exeptions that vary from >>> country to country). >>> >>> > On the other hand, I'm not sure that failing to declare a copyright to >>> >>> "Failing to declare a copyright" has no meaning since 1970 or so. >>> In the first half of the 20th century, that had a legal meaning, >>> but after one particular major rewrite of copyright law, any "idea >>> in fixed form" (paraphrased) was under copyright. >>> >>> Cheers, >>> - Graham >>> >> >> > > _______________________________________________ > lilypond-user mailing list > lilypond-user@gnu.org > http://lists.gnu.org/mailman/listinfo/lilypond-user > >
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