Transriptions from Collected Works

[rpatters1]

If one makes a transcription or an arrangement of a work from a long-dead composer using the Collected Works edition as a source, what is the copyright status of the transcription? I am particularly interested in Guillaume de Machaut and Michael Praetorius, for which I have done arrangements for completely different ensembles than the original. I believe for both these composers the Collected Works edition is still under copyright, but my versions are significantly different than those, both in terms of instrumentation and content.

[steltz]

One of our copyright experts should probably also answer this, but I think that the instrumentation you use doesn't matter. If your source is still under copyright, then you are violating that copyright, no matter what instruments you transcribe the piece for.

Editors are protected in some jurisdictions, so you have to check that. Also, the composers you mention would have written in mensural notation, and how that gets transcribed into modern notation may also be under copyright.

[rpatters1]

Just to be clear: my version changes the instrumentation, the content (that is the melodic and harmonic content), and the notation (meter), to a greater or lesser degree depending on the section of music. Since I am fairly certain that at least Praetorius was published at the time he was alive, surely the only copyright the Collected Works has is in the edition, not the content. If so, have I violated the copyright merely by referring to the edition as a source?

[Carolus]

The collected editions you mention fall under urtext provisions of copyright law in the EU, which means they are optionally protected for a maximum term of 30 years from publication in member states which address such editions in their laws. As far as I know, only three EU countries address editions of this nature, all of which have shorter terms: Germany (25 years), Italy (20 years), and UK (25 years on "typographical layouts"). While the general consensus in Canada is that editions of this nature fail to meet the "threshold of originality" to qualify as an "adaptation", there have not been any court cases which directly address the issue of whether they meet the threshold or not. Also, the poorly-written attempt in Canada's law to enact a "rule of the shorter term" for works of non-NAFTA origin (which has held to apply only to works with more than one contributor) would actually apply to such editions as there is always more than one contributor involved. (the original composer plus any editors). The "threshold of originality" situation in the USA is similar, but a problem arises with such editions that were published with a compliant notice before 1989 and/or registered and renewed with the copyright office. Registration in particular is held to be pima facie evidence of the validity of a copyright claim, which means the burden of proof falls upon the plaintiff to demonstrate to court that the edition fails to meet the threshold of originality as described in the USSC decision Feist vs. Rural. Fortunately, a fair number of such editions failed to meet the notice and renewal requirements. Even better, because they are public domain in their country of origin, they are not eligible for "restoration" under the provisions of GATT/TRIPS.

As I recall, both the Machaut and Praetorius collected editions were issued in the 1920s and 1930s and fall in the last category mentioned - free in the USA, the EU and Canada. Another real pitfall with respect to the USA status of very old works like these is the whole question of when "first publication" took place. With Praetorius, it's not a problem as most of his considerable output was actually published in his lifetime. Machaut's work is different. If, for example, a Machaut work you wished to arrange was first published in 1933 with a valid notice and duly renewed 28 years later (and there were a few European publishers who were incredibly good at making sure this was done), that work would still be under copyrght in the USA until 2029 - despite the composer being dead hundreds of years. (Ouch!)

[rpatters1]

Thank you Carolus for the comprehensive reply. The works by Praetorius are from Terpsichore, which I seem to recall is the name of (ahem) a publication during his lifetime.

Do think the fact that my adaptations contain significant original elements is relevant to their copyright status? For example, Machaut's Douce Dame Jolie as published is a single melodic line, while my version is a full-blown piece for four players. Some of the settings are more like transcriptions, though. (The other Machaut pieces I used were Quant j'ay l'espart and Mes esperis de comat)

[Hamstray]

i guess the republisher of the work would have to actually prove that you derived your work from theirs and not some earlier publication. unfortunately without having access to those earlier publications for comparison you wouldn't know what you are in for. it may also be a perverse incentive for editors to make grave alterations. These are just a few of the reasons why I value the original publications of works higher than more recent ones.