my mother's music

[rhymesandchymes]

Hello,

I am Vivian Fine's daughter. I would like to post my mother's unpublished scores on this web site. I have created a web site, vivianfine.org, to preserve my mother's unique musical legacy and to make her music more widely known and available. But I am 68 and concerned that her music remain easily accessible after I am gone. Neither of my children are in a position to do this. My mother's manuscripts are in the Library of Congress but it is difficult to get copies of scores unless you go there and even then it's not easy.

Together with my sister I am the copyright holder for all of my mother's works except for the few that have been commercially published. However I am estranged from my sister and do not wish to contact her.

So my question is, do I have the right on my own to post the unpublished scores to imslp.org?

Thanks very much for your help.

Peggy Karp
Sebastopol, CA

[pml]

Hi Peggy,

if you’re concerned for your mother’s legacy I’d really suggest considering writing a letter to your sister (and her children?) to inform her (and them?) of your intention to help preserve it – at least to establish that she is disinterested in what you’re doing, or has no objection to it in principle. If you have a family lawyer (who perhaps handled the settlement of your mother’s estate) it might be an idea to draft the letter with their assistance (or just ask for them to vet it) so that it doesn’t appear like a legal threat! Is your sister aware of the website?

Otherwise you probably wouldn’t have a leg to stand on should your sister object to you posting the copyrighted works, and it doesn’t sound feasible for you to pass this on to the next generation, when management of the estate would be split between your children and their cousins. If you’ve already established – prior to your estrangement – that your sister was amenable to you managing or controlling the musical works, then I see less reason for an objection. It’s very rare for minor or unfamiliar works of somewhat obscure composers to be commercially valuable long after the composer’s death, so I don’t see a rational objection on the grounds that the works should continue to be exploited commercially – but that leaves the possibility of an irrational decision!

I imagine most of the published works were published in the US before 1978? Those works are probably under the control of their respective publishers until the 95 year term elapses, unless early works before 1964 were not renewed or had defective copyright notices (unlikely).

Cheers, Philip

[Carolus]

Dear Peggy,

Philip is correct about everything in his reply with the possible exception of published works. Generally speaking, it is quite possible to get the copyrights back from publishers as long as the composer was careful about reviewing the publication contracts signed. There are two sections of the US copyright law, 203 and 304(c), which deal with the termination of transfers and licenses granted by the author or copyright owner. For works first published under the copyright owner's authority 1978 and later, section 203 stipulates that a termination must be initiated no earlier than 35 years from the date of transfer, but not later than 40 years from the date of transfer. For works published before 1978, section 304(c) states that termination proceedings must be initiated no earlier than 56 years after the original date of transfer, but no later than 61 years from date of transfer, or starting at 75 years but not later than 80 years from the date of transfer. For all practical purposes, the date of transfer is the same as the date of publication (usually).

Assuming everything published before 1964 was duly renewed 28 years after publication, the published works are protected in the USA for 95 years from publication. Items first published after 1977 are protected until January 1, 2071 in the USA and EU, January 1, 2051 in Canada and most of Asia. Should your sister agree, the posting of your mother's work on IMSLP will not alter their copyright status or ownership-split in any way. I recommend you have a look at Leo Ornstein's category, which has been made possible thanks to the blessing of his son Severo Ornstein, to see how a composer whose work is under copyright appears on the wiki. If your sister is amenable, I recommend that you select the non-commercial, no derivtaives version of the Creative Commons license as this will allow for performance and broadcast royalties to continue to be collected by ASCAP or BMI for all but unpaid benefit performances (which they can't collect on in any case legally).

Best Wishes

Carolus (IMSLP Copyright Admin)

PS: Posting on IMSLP would most likely meet the legal definition of "publication" under US law, although it would appear (after perusing your webiste) that the offer of scores "Copies of scores may be obtained by contacting resources@vivianfine.org." would likewise meet the criteria. A quick search of OCLC generated about 121 items (numerous duplicates, reissues, listings of copies of manuscripts, etc.) - which probably boils down to about 30 works altogether being published. The earliest item I saw was issued in 1933 in Henry Cowell's periodical New Music. Apparently a number of things were self-published(?) under the imprint "Catamount Facsimile Editions" also. The vast majority of works would fall under the life-plus-70 calculation of copyright term.

[daphnis]

Agree wholeheartedly with Philip and Carlous above. An unrelated question: Was she (and are you) related to American composer Irving Fine in any way?

[imslp]

I agree with Philip and Carolus' analysis above. Because you are the co-owner, but not the joint-author of the work (nor was the work jointly created in my understanding), the legal issues in this case may have more to do with Property law than Copyright law.

Joint-authors might be able to unilaterally enter into licensing agreements. However, in this case it is a joint ownership of a single-author work, in which case the normal rules of Property will likely dictate that you need permission from all joint owners of the copyright.

Would it be any better if IMSLP asked your sister instead?