Klarinet Archive - Posting 000886.txt from 2003/05

From: "Kevin Fay" <kevinfay@-----.com>
Subj: RE: [kl] Mr. Sousa and the Eb Clarinet
Date: Sat, 31 May 2003 18:23:50 -0400

Regarding copyright, Mark Charette posted:

<<<It's an interesting dilemma and depends on what the editing "does". For
an
in-depth view see:

REVIVING THE RHETORIC OF THE PUBLIC INTEREST: CHOIR DIRECTORS, COPY
MACHINES, AND NEW ARRANGEMENTS OF PUBLIC DOMAIN MUSIC

PAUL J. HEALD

Reprinted by permission from Volume 46, No. 2 of the Duke Law Journal
46 DUKE L.J. 241 (1996)
Copyright © 1996 by Duke Law Journal>>>

I've read Heald's piece - nicely written, good analysis, and a good bit of
wishful thinking. The flaw (i.e., the danger) is around footnote 105.
Heald equates the uncopyrightable telephone number data of the Feist
decision with a musical work in the public domain - a criticial flaw in his
analysis, I believe, and one that opens the door to potential liability.

In Feist, the Supreme Court held that you can't create a copyrightable work
by compiling data (phone numbers). No amount of "sweat of the brow" can
make data copyrightable - looked at another way, you can't create a
derivative work from data. You certainly *can* copyright music, however, so
the sweat of the brow to create a derivative work might well create an
independently copyrightable work; Feist is not dispositive becuase of the
different nature of what's being worked on.

Now I'm not saying that Mr. Heald is wrong; I may agree with his analysis,
and might actually go his way if I were the judge. Until there is case law
on point that holds that derivative works (editions) of public domain works
are not susceptible to a separate copyright, however, the conservative
approach would be to advise that you are copying at your peril.

kjf

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