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| From: | Mike Blackstock |
| Subject: | Re: Solfege Resources -- 404 bach chorales in Lilypond format with Movable Do solfege. |
| Date: | Mon, 3 Jan 2011 02:09:35 -0800 |
A few excerpts from the Wikipedia article on derivative works. Highlighting and italics added by me.
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 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.
Although serious emphasis on originality, at least so designated, began with the Supreme Court’s 1991 decision in 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] and earlier in L. Batlin & Son, Inc. v. Snyder,.[2]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] 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] 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."
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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 <address@hidden> 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 <address@hidden> wrote:On Sun, Jan 02, 2011 at 12:59:39PM -0500, Michael Ellis wrote:I haven't checked it myself, but if this Breitkopf edition is on
> 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.
IMSLP, then yes.
"Assertion" is completely irrelevant to the status of being under
> 3. Margaret Greentree's XML files do not contain any copyright
> assertions other than for the PDF output.
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)
No. The question is whether her particular rendition of the Bach
> 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.
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).
"Failing to declare a copyright" has no meaning since 1970 or so.
> On the other hand, I'm not sure that failing to declare a copyright to
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
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