Klarinet Archive - Posting 000415.txt from 1998/08

From: Oliver Seely <oliver@-----.EDU>
Subj: RE: [kl] Copyrights
Date: Fri, 14 Aug 1998 16:05:22 -0400

Kevin wrote in part,

>It is a violation of the copyright law

and

>Bringing a lawsuit is a business decision.

Ever since reading the Feist Publications vs. Rural Telephone Services
decision
in 1991 I've decided that where a change in the appearance of a publication=
=20
of public domain material is concerned, everything is up in the air.
If George were to change the appearance of some music which has fallen into
the public domain, even by its enlargement, I wouldn't be so sure that it
would be an infringement of copyright on the presentation. But of course we=
=20
as individuals don't have the resources to find out by carrying through=20
with the litigation if sued. (Remember now, I'm talking about music=
composed=20
by someone who died more than 75 years ago.)

Here's what happened in the Feist vs. Rural decision. Feist wanted to make
a wide area directory, white AND yellow pages, and asked Rural, which ran a=
=20
little telephone service somewhere in the midwest, if they (Feist) could
extract
the white pages material and use it in their wider area directory and PAY
Rural for the right to use the material. Rural refused. So on advice of=20
counsel, Feist
went ahead and used it anyway. So Rural sued Feist for infringing on their
copyright. =20

Now, stop the story for a moment right there. It Feist had been you or
me, we'd be shaking in our boots. Off would go a letter to Rural saying
we're sorry, please don't sue us, we will cease and desist.

Ah-ha, but that didn't happen. The two parties went at it and the case
slowly wound its way to the U.S. Supreme Court. Here is what Sandra Day
O'Connor said for the majority:

****

"Rural's white pages do not meet the constitutional or statutory
requirement for copyright protection. While Rural has a valid copyright in
the directory as a whole because it contains some forward text and some
original material in the yellow pages, there is nothing original in Rural's
white pages. The raw data are uncopyrightable facts, and the way in which
Rural selected, coordinated, and arranged those facts is not original in
any way. Rural's selection of listings =97 subscribers' names, towns, and
telephone numbers =97 could not be more obvious and lacks the modicum of
creativity necessary to transform mere selection into copyrightable
expression. . . .Moreover, there is nothing remotely creative about
arranging names alphabetically in a white pages directory. It is an
age-old practice, firmly rooted in tradition and so commonplace that it has
come to be expected as a matter of course."
****

Try replacing phrases to reflect the status of music which has fallen
into the public domain and you begin to realize the extent to which all of
us have been subjected to an atmosphere of intimidation of publishers who
make extravagant claims for that which is covered by their copyrights.
My understanding is that publishers have a legitimate copyright only on the
presentation of a work by a composer who died more than 75 years ago and
nothing on the substance of the work (the note placement, dynamics
and articulation intended by the composer). It could be argued I believe
that enlarging the work for better viewing would constitute a sufficient
change to represent a new copyrightable presentation (by the person who
did the enlargement). It's a stretch, I know, but still worth some
consideration. =20

Where the public domain elements are extracted from a copyrighted=
presentation
and turned into a computer file, such as my .MUS and MIDI files, there=20
is no problem. As some of you know, I have copyrighted all of my
presentations
of these old works and then declared them to be in the public domain.
Copy all of them to your hearts' content and don't give a thought to being
ambushed by the Copyright Police -- but above all, keep downloading and
playing them!! 8-)

Oliver

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