logo

Ask a Lawyer: Public Domain, Classical Music and the Layers of Copyright Protection

Copyright protects original literary, dramatic, musical and artistic works of authorship during the lifetime of the author, the remainder of the calendar year in which the author dies, plus 50 additional years. Once this term expires, the work is in the public domain. The public domain is composed of millions of creative works including the masterpieces of classical composers like Mozart, Wagner, Beethoven and Vivaldi all of which may be freely copied, distributed, adapted, or performed in public without permission or paying a fee.

However, if Beethoven’s 5th Symphony is in the public domain, how are many publishing companies claiming copyright ownership in this classical work? After all, Beethoven has been dead for more than 50 years! To start, don’t assume a classical music piece is in the public domain. To make proper use of classical music in the public domain, it is important to understand how copyright law works in Canada and the differences between musical works and sound recordings.

Canada’s Copyright Act defines a musical work as “any work of music or musical composition, with or without words, and includes compilations thereof.” Classical compositions are considered musical works and are, therefore, protected by copyright law. Protection begins once the composer creates and fixes the composition in a tangible form, which usually means writing the musical notation in the form of sheet music. The protection expires 50 years after the composer’s death. At that point, it becomes part of the public domain. Therefore, the musical compositions of Mozart, Wagner, Beethoven and Vivaldi are free to copy, distribute, adapt, or perform in public.

In the late 19th century, before the advent of recording devices, copyright protection for musical compositions was all that was necessary to protect composers’ rights. However, with the arrival of sound recording devices, a second form of music copyright, commonly known as “sound recording rights,” was created to protect recorded performances. In Canada, a sound recording is defined by the Copyright Act as “a recording, fixed in any material form, consisting of sounds, whether or not of a performance of a work, but excludes any soundtrack of a cinematographic work where it accompanies the cinematographic work.” Unlike copyright in musical works, copyright in the sound recording protects the way a musical composition is performed and recorded. Also, the term of protection is shorter, lasting for 50 years after the first publication of the sound recording.

Therefore, two sets of copyright protection exists in every sound recording — the right in the composition, and the right in the sound recording. Practically, when a musician records herself playing Beethoven’s 5th Symphony, she owns the copyright in the recording and the arrangement. The same happens when a record company records a recording of the song and includes it on an album. The record company will own the copyright in their own recording and arrangement.

Each sound recording made of Beethoven’s 5th Symphony, whether made at home by a musician or in studio by a record company, will be protected by copyright. Regardless of the number of sound recordings, there will only be one copyright in the underlying composition. So when you are listening to Beethoven’s 5th Symphony on the radio, it’s not just Beethoven’s 5th Symphony you are listening to, it’s also the performer’s arrangement of that piece, which is also protected by copyright, and therefore cannot be used without permission from the sound recording’s maker(s).

In a related content, when a film producer wants to use a song in the film, he will require synchronization rights from the song’s writer(s) and master use recording rights to use a specific pre-existing recording. I the master use rights are too expensive, especially if the recording features the song’s writer, the film producer might consider re-recording the song in order to avoid paying an expensive master use license. However, the additional costs to re-record a song might cancel out the cost savings of avoiding to pay the master use fees.

To conclude, do not assume that a sound recording is in the public domain just because the composer of the underlying musical work died 50 years ago. Even when a composition is in the public domain, the sound recording is still protected and its copyright owner has exclusive rights to that particular arrangement for 50 years after the first publication of the sound recording. However, copyright law does not prevent you from performing, copying, distributing and recording your own arrangement of Beethoven’s 5th Symphony or any other any musical composition found in the public domain.

Edwards PC, Creative Law is a boutique law firm provides legal services to Music, Film, Animation, TV, Digital Media, Game, Software and Publishing industry clients. For more information and blogs, please visit www.edwardslaw.ca

© 2018 Edwards PC

* This blog is for general informational purposes only and is not to be construed as legal advice. Please contact Edwards PC, Creative Law or another lawyer, if you wish to apply these concepts to your specific circumstances.

Post Tags

,

Post Categories

copyright, music