Author: Ken Shaw ★2017
Date: 2008-04-28 22:05
Mark -
Markings on music are not copyrightable if they simply say something that's obvious to everyone. The last movement of the Mozart Clarinet Quintet is a theme and variations, as every competent player recognizes immediately. If Mozart had not marked the variations, an editor who simply marked "Variation 1," "Variation 2" etc. wouldn't have done sufficiently creative work to get protection. Likewise, McLane's autograph wouldn't be copyrightable.
However, the Wright markings in the Sloane book go well beyond the obvious, showing phrase shapes and Wright's unique musicianship. This sort of original work on public domain music is copyrightable, as Hyperion found to its dismay and possible bankruptcy.
The owner of an unpublished manuscript can prevent its publication forever. Remember when you had to remove the Winterthur Fragment from woodwind.org. This runs perpetually, at least in New York. (Think of the Naxos litigation over the Menuhin recording of the Elgar Concerto.) Typically the right travels along with the object, and if Wright gave the material to Rick Muraida (duxburyclarinetguy) without reserving any ownership rights (which is undoubtedly what happened), then unless Wright had registered the copyright with the US Copyright Office before that time, Rick owns those rights. The situation is made more complicated by the publication of the Sloane book. If the book reproduces the exact material he gave to Rick, then there could be extensive, expensive litigation about who owns what, on the unlikely assumption that the material is valuable enough to litigate over. (The Hyperion litigation was worth it, since in England, the losing infringer has to pay the winner's attorneys' fees.)
However, the Wright annotations in the Sloane book have been published, so they have lost their perpetual common law copyright and are protected by statutory copyright. Thanks to Disney and Sonny Bono, this is life plus 90 years. I doubt that Wright's estate sold the copyright to Sloane. They probably only granted him a license to use it for that purpose only.
Similarly, if Rick's McLane material is edited music, he would own the right to publish it.
IAAL, but my words are worth what you paid for them. People become lawyers because they love complication and argument. Any competent lawyer could hold forth for hours about a case like this.
Ken Shaw
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