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Klarinet Archive - Posting 000143.txt from 2003/06

From: Mark Gresham <>
Subj: Re: [kl] Re: Copyright; was Law and Semantics
Date: Wed, 4 Jun 2003 15:47:42 -0400

Oliver Seely wrote:
> Several years ago I observed that in the case of the K.452 quintet, I
> checked perhaps 60 measures in the first movement in a photocopy of the
> autograph and compared them with the same measures in a published,
> copyrighted edition. There were no differences. None. I would take a
> chance on a court ruling that when something is in the public domain it
> is in the public domain and it doesn't matter where someone gets his
> source material if the substance of that source is in the public
> domain.

Your use would have to be challenged by the publisher. The copyright,
in this case, may be on additional material, or may just be tagged on,
which sometimes also happens as a routine. However, the question of
"substance" is not always obvious from just the date of composition or
of a composer's death...

> I wouldn't worry about taking notes, articulation and dynamics
> markings from a published version if I was confident that the
> publisher's intent was to adhere to that which was put down by the
> composer.

That "confidence" can be a long shot, given some music that is
"reconstructed" from sketches (and required editorial decisions to
discern composer's intent), and that many critical editions are not
necessarily "urtext." "Urtext" is only one approach, for a while very
fashionable. But not by any stretch universal.

> That publishers historically have prided themselves on
> accuracy makes such an assumption rather routine.

You have obviously not been around the choral music world...
(Can you say "Walter Ehret?") Or some eras where your assumption about
publishers is not so "historically" true.

> Moreover, significant
> changes by a publisher result in the standard by-line, "Arranged by. . ."

There is also "edited by..."

> The second point is that not only do I frequently make changes from that
> which I find in published versions (and mine of course result in an
> improvement to the work!) but I make mistakes too. I figure that I
> ought to be able to copyright ALL of my mistakes!

Actually, a lot of copyrights cover editorial corrections of mistakes
made in original editions. Faure's "Requiem" is a good example where
literally hundreds of errors have been corrected through editorial
research, and yes, those editorial changes are protected (Hinshaw Music,
in this case). Critical editions of early music (by A-R Editions and
the like) also contain "substantial creative input" (which is the
deciding factor) including research. Some new editions of older works
contain materials which appear only in the new edition, and can be found
nowhere else.

In my own case, I once set an early 19th century text that was available
in bookstores only in a new critical collection edition (1970s). So I
went to the archive library of a major university to obtain certified
reproductions of the original publication of the poem from the early
1800s, just to cover myself, and to get the earliest source available.
While I did not know in advance whether or not there had been
substantial editorializing in the 1970s collection that included this
poem, I found it was necessary to check it AND to demonstrate that I
used an available source other than the new collection.

If I only had access to, say, early 20th century G. Schirmer editions of
Beethoven's piano sonata's, I'd be sorely mistaken to assume
"confidently" that these were written exactly "as the composer
intended," though they were intended to incorporate "unwritten
teachings" passed on by a direct lineage of Beethoven's students. Had I
copied these edition with that kind of "confident" assumption during the
period of time they were under copyright (because the original sonatas
were long past copyright) and republished them that way myself, I would
have been up for a lawsuit from G. Schirmer in no time, the same way I
would if I copied a new critical edition of Rameau's music because the
original was obviously written so long ago. Then there's the
publication of previously "undiscovered" music by a long-dead composer,
a different kettle of copyright altogether...

> Barring that, the
> mistakes which creep into a new edition of a commercially published
> version of a public domain work offer a unique spin on the earlier
> work. No self respecting publisher would claim it to be a copy! 8-)

Some changes to "public domain" material are intentional rather than
mistakes. Witness the arrangements of spirituals by William Dawson,
where he included "signature" elements in melodies in order to catch
people who used his work as a basis for re-arranging their own (a part
time activity for Dawson). Aaron Copland's changes to the "Simple
Gifts" tune are now so familiar that many people assume it to be the
traditional PD melody, which it is not.

Mark Gresham, composer
Lux Nova Press
LNP Retail Webstore

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