Klarinet Archive - Posting 000330.txt from 2000/07

From: "Kevin Fay (LCA)" <kevinfay@-----.com>
Subj: RE: [kl] Re: Original scores for festival judges
Date: Fri, 7 Jul 2000 16:26:47 -0400

Mark posted:

<<<I wrote to Prof. Heald (he's Allen Post Professor of Law, University of
Georgia School of Law) and he's going to send me a hard-copy [of his
article, "Reviving the Rhetoric of the Public Interest: Choir Directors,
Copy Machines, and New Arrangements of Public Domain Music," 46 Duke Law
Journal 241 (1996)] to scan & post on Sneezy.

Along with getting the permission of the Duke Law Journal :^)

Nice people abound - even lawyers :^)>>>

. . . yes, but *tall* people rebound.

I'm interested to read Prof. Heald's take on the Feist decision. As a
professor, he has a bit more time (and a whole lot more research assistant
time) to count the angels.

I'm a wee bit more conservative in my interpretation than those other folks
you have consulted, perhaps. The essence of the Feist decision was that one
cannot assert a copyright in raw data -- in that case, the telephone numbers
-- because there is no originality in the numbers themselves. The decision
did *not* say that it is legal to photocopy the telephone book, only that
you can include the same numbers in your phone book, alphabetized, without
committing a copyright violation.

If one equates public domain musical works with Feist's raw data -- I don't
think that would be much of a stretch -- it should be perfectly OK to input
the Mozart concerto into Finale, print and sell it. Some caveats, however:

-- You can only input the Mozart concerto, not subsequent editing. Tony
Pay asserts that you don't want to for musical reasons; my assertion is that
you won't for legal ones. Arguably, the editor's revisions are
copyrightable as their own original work. Editing the editing infringes the
editor's derivative work.

The problem for the Mozart concerto, of course, is that we don't have what
Mozart wrote, but only subsequent editions. Many of these are also in the
public domain, however, and available as resources for the guesstimate. If
Tony Pay were to publish *his* best guess as to what Mozart actually wrote,
however, he may indeed be able to assert a copyright to it, or at least
those portions of the "reconstruction" that are not in the earlier public
domain editions.

-- Inputting into Finale is not the same as photocopying. While the Mozart
Concerto may well be in the public domain, I'm not at all convinced that
particular printings won't be subject to copyright protection. Music
engraving done well is an art in itself; while the "sweat of the brow"
theory has been discounted in some contexts, I'd be very wary of firing up
the photocopier for an edition that isn't the requisite age. Remember - the
Feist decision held that it was acceptable to use the *data* to create a
competing telephone directory; it did not hold that outright photocopying
would be legal.

Finally, there are *many* nice lawyers. In general, 'tis true that they are
nicer whilst not lawyering.

kjf

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