
Happy Public Domain Day: Gershwin’s “Rhapsody in Blue” Is Copyright Free - aaronbrethorst
https://hyperallergic.com/535370/the-books-films-and-songs-entering-the-public-domain-in-2020/
======
herodotus
The music is in the public domain, but the copyright status of recordings of
music in the US is very complex. For example:

"In 2005 the landmark case of Capitol v. Naxos pitted a distributor of 1930s
foreign classical recordings (Naxos) against the putative holder of the U.S.
rights to those recordings. The judges of the New York State Court of Appeals
ruled against Naxos, but they used the opportunity to go much further than
that. They declared that since New York State had not passed explicit statutes
dealing with recording copyright, it was in fact governed by “common law”
(i.e., law declared by judges in their rulings). In their opinion sound
recording copyright in New York derived from the laws of seventeenth-century
English kings. It was absolute and perpetual. The rights holders have all
rights, forever, and the public has none." (Capitol Records, Inc., v. Naxos of
America, Inc., 830 N.E. 2d 250 (N.Y. App. 2005).)

See:
[https://recordingcopyright.org/pdf/AMuscop_fnl.pdf](https://recordingcopyright.org/pdf/AMuscop_fnl.pdf)

Therefore, it is illegal to copy and distribute an old recording of Rhapsody
in Blue if the recording was made in the US.

~~~
lonelappde
Ah, New York Court of Appeals. Where can I buy a copy 17th Century English
sound recording?

And since this is common law, why haven't any other courts given their own
alternate common law? Deferring to English law is bizarre, considering that
the Constitution was written specifically to replace English law, including a
specific Copyright clause, and backed by a war against England.

~~~
herodotus
My understanding is that copyright of US sound recordings are governed at the
state rather than federal level. Say you wanted to create an App or website
for classic early recordings - you would have to get permission from all 50
states plus DC, and other territories in oder to proceed! Good luck with that.
However, recordings made in Europe prior to 1961 are in the public domain. In
2011, EU copyright was extended from 50 years to 70 years, but this did not
apply to any recording that was already in the public domain.

~~~
radeklew
What's the 52nd state? I'm assuming DC is treated as the 51st, is the 52nd the
federal government? (sorry if it's a typo, I'm asking in good faith)

~~~
hermitdev
I think the GP was referring to other US territories such as Puerto Rico, US
Virgin Islands, etc.

~~~
beerandt
Which is a bad example, because in the absence of statehood, federal
sovereignty controls for DC and all territories.

------
bbanyc
The Gershwin estate was the other big force lobbying for the 1998 copyright
extension, besides Disney of course.

I guess United Airlines doesn't have to pay royalties for its theme song
anymore.

~~~
pkaye
Seems like the EU preceded the US in this copyright extension and the pressure
was on the US to harmonize per terms of the Berne convention. I wonder why the
EU increased the copyright terms Disney was the main lobbying force?

> After the United States' accession to the Berne convention, a number of
> copyright owners successfully lobbied the U.S. Congress for another
> extension of the term of copyright, to provide for the same term of
> protection that exists in Europe. Since the 1993 Directive on harmonising
> the term of copyright protection, member states of the European Union
> implemented protection for a term of the author's life plus seventy years.

[https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act](https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act)

~~~
incompatible
The Berne convention doesn't go beyond lifetime + 50 years.

~~~
lern_too_spel
The Berne convention means that the US must respect copyrights held by authors
in other countries _according to the copyright laws in those other countries._
If authors in other countries get longer copyright protection, their works can
be monetized longer, leading to a trade imbalance in IP. Countries with laws
that offer shorter copyright protection will be incentivized to increase the
duration of copyright protection as a result.

~~~
incompatible
No, I believe it means that the US must protect copyrights of qualifying
foreign works under its own laws. This is lex loci protectionis. A foreign
work may even be expired in its own country, but still protected in the US if
the US provides longer terms. The US doesn't actually have to do that, but it
hasn't implemented the "rule of the shorter term".

~~~
lern_too_spel
You are right. I misread it. These works that have recently entered the public
domain in the US have already been in the public domain in some other
countries.

~~~
incompatible
And the other way around: Thomas Mann’s The Magic Mountain is given as an
example of a work that's now public domain under US law, but Mann died in 1955
and his works are copyrighted in the EU until 1 Jan, 2026.

------
BelleOfTheBall
The cool thing about this for me is that list of the 'worst of 1924'. It
highlights that we're trying to preserve ALL media. Not the best of the best,
not some cherry-picked list made up by a bunch of critics. Every single flat
comedy, ever unoriginal love song, every boring book, it's all being
preserved, if found. Because even bad art matters and, besides, it's not bad
to everyone. It's important to keep this attitude for the upcoming years of
works, where there'll be much more stuff to save. Let's not just take care of
Hitchcock's and Chaplin's and so on. Ed Woods of the world deserve remembrance
as well.

~~~
btown
The brilliantly optimistic thing about an exponentially growing, resource-
unconstrained interstellar civilization (which we will hopefully survive to
become) is that as long as the ability and desire to consume media grows
proportionally to the ability and desire to create media... the amount of
media from the past will be less than newly created material at any given time
(∫e^t = O(e^t)), and thus media from 2019 should be as accessible in 3019 as
media from 1920 is, if not more so. We are creating an infinite legacy, and
that's really really cool.

~~~
erikpukinskis
Or it’s a gold rush and media is a finite space.

------
lifeisstillgood
So, just intellectual curiosity, is there a software program that could accept
the original notes (arrangement?) for Rhapsody in Blue and produce a passable
rendition that I could then use on my (non existent) YouTube documentary and I
would not have to pay Gherswin nor an orchestra for the audio recording?

I think I am looking for a whirlwind tour of audio copyright

~~~
wolfgang42
Yes, a MIDI synthesizer can take the score and convert it to audio. (The
discerning ear—or even an untrained one, if it's a poor quality
sythesizer—could tell the difference between that and a live orchestra, of
course, but that may not be a concern for you.)

However, unless you transcribed the original sheet music to MIDI yourself, the
file may constitute an “original work” for which there is a separate
copyright[0], in which case you'd still need an appropriate license for that.
You'd also want to make sure that the sound fonts the synthesizer is using are
OK as well.

Now that the original work is in the public domain, though, I would expect
that sooner or later there will be a CC-licensed version of it on Wikimedia
Commons or the YouTube Audio Library, and you may want to just wait for that.

[0]:
[https://meta.wikimedia.org/wiki/Wikilegal/MIDI_Files](https://meta.wikimedia.org/wiki/Wikilegal/MIDI_Files)

~~~
crazygringo
Indeed -- transcribing sheet music into MIDI is generally not going to be 100%
automatic, whoever is doing it is going to have necessary artistic choices to
make -- what metronome speeds do tempo descriptions convert to, how much
longer will a fermata hold, what levels of volume the different dynamic
markings will hold.

You _could_ take a "pure" mapping of just the notes and relative durations...
but then you'd wind up with what would essentially sound like a weird robotic
"player piano" version of the music at strange speeds that would be, well...
pretty bad.

~~~
Eric_WVGG
A player piano doesn’t necessarily have to sound bad.

Back in 1993 Yamaha built a device that could read piano rolls personally
“recorded” by Gershwin by hand (he would hammer them out for money in his
spare time), and then played back on a modern player piano. The resulting
album is one of my all-time favorite albums.

Yamaha still sells these “scans” (on 3.5” floppy!) for their player pianos,
and they could certainly be reverse engineered, but I imagine they are
considered derivative works and covered by their own copyright.

[https://apnews.com/fb3f8c3bc3305506f57120df0755f9d8](https://apnews.com/fb3f8c3bc3305506f57120df0755f9d8)
[https://youtu.be/_kIpr6nSvjI](https://youtu.be/_kIpr6nSvjI)

~~~
crazygringo
Interesting! Well, if you perform intentionally without dynamics, the player
piano is certainly a valuable artistic choice in its own right. More like a
harpsichord, in a way.

But I'll point out that the YouTube performance you linked to isn't a player
piano at all -- it's an actual recording, which Gershwin overdubbed to be two
pianos.

While player pianos that could incorporate dynamics existed, I'm not sure they
were common, and I'm also not clear if there were any that incorporated
playtime "per note" dynamics as opposed to generally "overall" dynamics that
were added in via a separate mechanism.

But nevertheless yes -- there did exist some player pianos that had the
capability of being more expressive than the normal single-volume ones!

~~~
Eric_WVGG
I’m pretty sure “overdubbed” in this case meant “playing over the piano roll a
second time.” Not an actual recording.

This YouTube rip sounds a little crummy to me, though, I’d suggest finding
Gershwin Plays Gershwin on Spotify or your streaming service of choice...

~~~
crazygringo
They're drastically different, though.

The YouTube link you referenced is an actual recording -- the notes are all
distinctly different dynamics, and there's plenty of background hiss. It's a
real recording, full of life, on a real piano, and genuinely overdubbed. It's
not "a little crummy" \-- to the contrary, it's an invaluable historical
record.

On the other hand, the "Gershwin Plays Gershwin" album is a genuine player
piano, but the Rhapsody in Blue is totally different -- it has zero dynamics,
everything is exactly the same volume. [1] It's interesting to hear, for sure
-- but more as a historical curiosity, since no pianist would ever perform
everything at the same volume unless limited technologically. Your original
link is Gershwin's full interpretation. In contrast, his player piano version
is nothing like what he would have performed live, but rather adapted to the
technological limitations.

[1]
[https://open.spotify.com/track/2XSBXz4uDvx1PQPYJWQpcK?si=EO3...](https://open.spotify.com/track/2XSBXz4uDvx1PQPYJWQpcK?si=EO3o4ILlSHqfjvRI-3twDw)

------
Rochus
The copyright in this case is a joke anyway because Gershwin died very young
and childless, so the right people didn't benefit from it anyway. Now we can
at least perform the work without stuffing any publishers and collecting
societies with unearned money.

------
zozbot234
More about Public Domain Day 2020 in the U.S.:
[https://web.law.duke.edu/cspd/publicdomainday/2020/](https://web.law.duke.edu/cspd/publicdomainday/2020/)
(discussed at
[https://news.ycombinator.com/item?id=21926233](https://news.ycombinator.com/item?id=21926233)
)

------
jancsika
Gershwin's original version, or the version everyone knows that was arranged
by Grofe?

If it's only the original version, it'd be kind of fun to see AA start using
that instead. IIRC it's got an extra piano in the rhythm section and a banjo
chugging away, too.

------
elfexec
If I'm understanding this correctly, something that was created in 1924 was
still copyright protected until 2020? Nearly 100 years of copyright - most of
it under the family of the creator who died in 1937? How can it be legal? At
what point can we say it is bad for society and hinders creativity and art?
Honestly, isn't it purely rent seeking at a certain point?

~~~
chrismcb
Your understanding is correct. And this is the point that we can say it is bad
for society. The Constitution says "a limited time" and that time should be
relatively short. I'm saying 25 years. Perhaps you can extend it for a large
fee. But currently the limit is 95 years longer than the average human life.
While it is limited, it is unlimited as far as a person goes, and in my
opinion goes against the spirit of the Constitution. Problem is, people with
more money than me say otherwise.

------
tony
I thought today would the public domain day for the Wilhelm-Baynes translation
of the Yi Jing (Book of Changes). According to
[https://fairuse.stanford.edu/overview/public-
domain/welcome/](https://fairuse.stanford.edu/overview/public-
domain/welcome/), no.

The first edition was published 1950.

I hear two different stories. It's 70 years after date of publishing, other
times it's 70 years after date of the last surviving author.

But - the translator Cary F Baynes, died 1977.
[https://trove.nla.gov.au/work/32102443?q&versionId=38994288](https://trove.nla.gov.au/work/32102443?q&versionId=38994288)

Does that mean Jan 1st, 2048 is the year the book would be public domain?

Aside: Cary F. Baynes was a student of Carl Jung. I didn't know that until
now. Jung did a preface to the english translation of Wilhelm's Yi Jing.

~~~
thenewnewguy
Neither of those answers are right because it was published in 1950. For works
published in 1950 the copyright was 28 years, and if the copyright was renewed
with the US Copyright Office they got another 67 years. This leaves two
possibilities:

The copyright holder didn't renew, in which case the work already is (and has
been for awhile) in the public domain.

The copyright holder did renew, and the copyright lasts until 2045.

------
phendrenad2
Just googled Rhapsody in Blue and this interesting related story came up:
Gershwin's Family Doesn't Want Rappers Sampling "Rhapsody in Blue"
[https://www.popdust.com/public-
domain-2020-2643146445.html](https://www.popdust.com/public-
domain-2020-2643146445.html)

------
TruffleLabs
Hugh Lofting, Doctor Dolittle’s Circus is public domain! I read that (and many
other Lofting books) when I was 12ish. :)

------
mikorym
This is probably one of the best representative songs from the Jazz era. It is
to me kind of like the "soundtrack before soundtracks".

Music from the 1920s to 1940s are largely lost on anyone today (below the age
of 80). But I have to say that there are some true gems from that time. My
grandmother had handwritten sheet music for something like 8–10 folios of at
least 30 songs each of music from that time. (None were as difficult as
Rhapsody in Blue though.)

The melodies from that time are very delicate and well thought out.

------
shmerl
_> 95 years_

This term is insane. It should be rolled back to something sensible.

~~~
incompatible
Yes, but it's not as bad as it gets. That's the date from publication.
Unpublished works get 120 years. More recent works get lifetime + 70 years,
which can be far longer.

------
ggm
King porter stomp! (*composed by Jelly Roll Morton) Mind you, I like the Benny
Goodman version better and it's still bound in ipr

------
imjustsaying
As an American public school student who was forced to listen to this
arrangement in multiple music and history classes, over the years I've begun
to find this startling and anxiety-producing piece suspect on multiple levels.
The copyright squabble is kind of funny though, they just couldn't help
themselves.

~~~
lamby
> over the years I've begun to find this startling and anxiety-producing piece
> suspect on multiple levels

As an amateur string player, the opening triggers me in that there is
invariably one blow-hard clarinetist playing the glissando opening too loudly
whilst everyone is warming up their instruments prior to tuning. Just.. yeah,
we get it, please shut up. :(

------
dehrmann
Take that, United!

But seriously, their marketing team for the past 30 years deserve mad props
for making this song synonymous with United. I can't name many brands with
songs as associated with them as this.

------
ljw1001
This is terrible.

With this kind of weak copyright protection killing his financial incentives,
I guess we kiss goodbye the chance that Gershwin will create anymore musical
works for us.

------
dogweather
Anybody know of public domain piano sheet music? I think it'll be hard to
find: Any arrangments made after 1924 will be protected works.

~~~
zozbot234
[https://imslp.org/wiki/Rhapsody_in_Blue_(Gershwin%2C_George)](https://imslp.org/wiki/Rhapsody_in_Blue_\(Gershwin%2C_George\))
scroll down to For Piano (Gershwin) and make sure to choose an edition that's
not copywritten in the U.S.

------
fortran77
This will save United Airlines a _lot_ of money!

------
kristopolous
Sherlock jr is mentioned in the lede, go watch it, really, it's good.

------
JoeyJoJoJunior
Are his prior compositions also Copyright free?

------
aaron695
I get it's a principal thing but in a era of sequel/remake/reboot people being
happy about the ability do it even more is pretty messed up.

Are we really running out of song writers?

I don't want more Mickey Mouse. It's destroyed enough culture as it is.

~~~
wolfgang42
The thing about remakes and sequels is that they're being done by the
copyright owners, who are generally trying to play it at least somewhat safe
and milk the IP for all it's worth. Once a work falls out of copyright,
_anyone_ can do whatever they like with it. Yes, there's likely to be a lot of
drivel, but there's also an opportunity for new and creative things, some of
which may be considered even better than the original work. (See fan
fiction/fan art for examples of this sort of thing happening now, with varying
degrees of legality.)

~~~
giantrobot
Or, you know, most of Disney's feature length animated features.

