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Happy Public Domain Day: Gershwin’s “Rhapsody in Blue” Is Copyright Free (hyperallergic.com)
492 points by aaronbrethorst 8 months ago | hide | past | favorite | 119 comments

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

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

> They declared that since New York State had not passed explicit statutes dealing with recording copyright, it was in fact governed by “common law”

How did the court justify that conclusion over the more obvious conclusion that copyright—including of recordings—is governed by federal law with a constitutional requirement for time limits?

The linked document explains this, but it's because there is no federal copyright law for pre-1972 sound recordings. Before 1972 there was no federal copyright law for sound recordings, and then congress did not want to change the state-law copyright status of recordings made before the federal law was passed, so it was intentionally left non-preempted so that state law applies.

> It was absolute and perpetual. The rights holders have all rights, forever, and the public has none.

Current situation is not much better to be honest.

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.

Almost all of the states, as well as the federal government, separately adopted and modified English common law as the basis for their bodies of law. The only exception is Louisiana which adopted French and Spanish style Civil law.

The Constitution isn’t a legal system in and of itself. Rather it sets out a system of government and gives one branch the power to make laws, another to execute them and veto new ones, and a third to supervise and rule on those laws (including setting up a court system).

> 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.

Err, I've got bad news for you about a lot of law.

Has me wondering, too. What?

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.

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)

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

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

That sounds unconstitutional to me.

Which part of the constitution do you think invalidates the ruling?

Article 1 Section 8 Clause 8

That provision grants Congress the power to pass copyright laws with limited durations, but where they choose not to exercise that power (as they had not for pre-1972 sound recordings until 2018's Classics Protection and Access Act) or to pre-empt the states' ability to rule or legislate on the topic, the states can do exactly what they could without that provision.

If this were in a Commerce Clause context, Congress' decision not to act on a given matter still wouldn't allow the states to restrict or legislate on interstate commerce, by the principle of the "Dormant Commerce Clause".

By analogy, I could imagine a "Dormant Copyright Clause" doctrine, meaning that the states shouldn't have the power to legislate copyright other than in whatever contexts the Federal government explicitly leaves to them.

This is all theory, of course. But actual case law does say something at least similar. See for instance Sears, Roebuck & Co. v. Stiffel Co., a case in which the Supreme Court said (in the context of patents) that the Constitution reserves the power over them to the Federal Government exclusively, and that the states can't give patent protection to something that Federal law doesn't protect.

>other than in whatever contexts the Federal government explicitly leaves to them.

This is what Congress did when passed the ~1978 legislation (even if somewhat retroactively, based on your dormant commerce argument). It explicitly affirmed existing state law for previous recordings, while declaring exclusive Federal jurisdiction for the future.

At least you can get some musical instruments / synthesizers and make your own recording.

Or just break the law by ignoring unreasonable copyright claims. Copyright on a recording from the 1930s is not beneficial to the public in any way. This approach of course comes with the risk of becoming the next Jammie Thomas.

Jammie Thomas wasn't distributing copyrighted works from the 1930s

That only applies in New York, right?

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.

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.


> I wonder why the EU increased the copyright terms Disney was the main lobbying force?

Some EU countries have pretty old and powerful copyright lobbies of their own, Germany is such an example with Springer and other big publishers.

That's why Germany loves "ancillary copyrights" of all kinds, the one for press publishers [0], pressuring Google, was one that even went international.

The same copyright interest holders were also responsible for establishing legal constructs like "auxiliary liability" [1], which ultimately led to the situation that most of the German language Internet needs to be moderated or else hosters make themselves liable for content posted by users [2].

So while Disney might be the biggest, and most visible, culprit, they are far from the only ones.

[0] https://en.wikipedia.org/wiki/Ancillary_copyright_for_press_...

[1] https://de.wikipedia.org/wiki/St%C3%B6rerhaftung

[2] https://de.wikipedia.org/wiki/Forenhaftung

"Harmonization" is PR propaganda for corporate interests. "Harmonization" is a rachet that gives cover to corrupt politicians extending copyright for one nation under cover of another's action.

It's also a sick irony that the word "harmonization" is used to mean "preventing music from being played".

> I wonder why the EU increased the copyright terms Disney was the main lobbying force?

The EU increased their copyright terms mainly to harmonise them, and Germany won the argument that this harmonisation shouldn't make things any worse for their copyright owners, so it got harmonised at the length of Germany's existing duration which was life+70.

Germany has a pretty strong publication copyright lobby of it's own. Americans on HN seem obsessed with Disney, but generally most international copyright extensions are due to unions working in the publishing and photography sectors much more than any corporations.

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

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.

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".

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.

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.

Is anything currently working its way through congress to extend it again? Anything we can try and get ahead of?

I remember this article from a while ago (beginning of 2018), saying the RIAA and MPAA was not actively pursuing anything to extend it again: https://arstechnica.com/tech-policy/2018/01/hollywood-says-i...

I didn't see anything refuting that in a short look around, but maybe that's changed.

Beginning of 2018? Later that same year the CLASSICS Act was signed into law, which extended copyright for many older recordings to 144 years.


Considering the public domain is up to 1924 and Steamboat Willie is from 1928, Disney is certainly going to start pushing for an extension soon if they haven't already started lobbying for specific legislation on the issue.

I bet they try something different this time than just an extension... maybe some sort of "brand icon" exemption that exempts any character who is strongly associated with a brand from copyright expiration. They probably sense that continuous extension isn't going to work forever.

The logo for Disney Animation before their movies is a clip of a few seconds of Steamboat Willie. I expect them to lean even more heavily on trademark protection once the copyright expires.

Besides, it's not like the copyright on the old theatrical shorts is that valuable. The real interesting stuff will be in the 2030s when the feature-length films start entering the public domain...of course by that point you probably won't be able to find any non-DRM video, if current trends continue.

Non-DRM video is alive and well on torrent trackers.

On a free and open internet, which may not exist much longer with current trends.

My intuition tells me that those of us who care about freedom will find a way to seep through the cracks of any wall attempting to destroy it. I agree the current atmosphere is bleak, but let's not give up so easily.

I just built the Steamboat Willie LEGO set. Was wondering what prompted that particular curiosity; copyright extension leveraging seems a plausible motivation.

That would probably be a violation of Berne Convention because brands are national constructs and require registration and convention requires copyright to exists independently of national borders and without registration.

Disney recently released some special edition gold fish crackers with the Steamboat Willie design. They are pushing for something.

"copywashing". Stealing content from the public domain by creating new copyrighted works that are substantially similar to old copyrighted works.

That'd fall under trademark law, no?

As long as we are watching Disney won't try. Votes are more powerful than money in politics when the voters are paying attention. Thus so long as we are paying attention Disney won't try anything. If we ignore the issue though...

Disney themselves according to shareholder reports also believe that Trademark law is in a strong enough position today that they aren't officially concerned about further copyright extensions when they can use the power of Trademark lawsuits to protect their IP. The copyright term is just one moat in their strategy, and they may indeed feel (as they've told shareholders) like they've made that copyright moat big enough they can focus on the next moat.

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.

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.

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

There is a difference between bad (which may be interesting) and boring. As good as production tools and archival media get, human attention is finite. It does no good to drown in dross. Remembering everything is a curse, and leads to madness in the humans who have a memory disability and cannot forget even their own personal last.

I agree with you that at the individual level, forgetting things is important for sanity and wellbeing.

When it comes to the culture of a country though, I don't think we should only preserve what we currently consider interesting. The purpose of an archive is to preserve things which may become interesting in the future.

Consider a society of philosophers, poets and artists who create amazing pieces of art. Then, consider a change in that society where the populace is more interested in horse races instead. Now all their writings become about horse races, the biographies of those horse racers, etc. They dismiss the old stuff as uninteresting. Should they destroy the books written by those philosophers and instead recycle the paper for printing stories about racing horses onto it? For us in the future, such a destruction would be quite sad. It would be silly to assume that we don't have present biases either. Maybe back then, everyone was familiar with the poets so there was no need to preserve their art as everyone already knew it. And why teach it to children when they are more interested in horse races?

Many archaeologic sites have been visited by pillagers again and again over the centuries (continues until today [1]). What are they taking? The interesting stuff they can sell. Too often, only the "boring" stuff remains to contemporary archaeologists. How happy they are when they find a receipt written into a clay tablet!

For decades, no piece of Bach was performed publicly. Now he's considered as one of the greatest musicians of all times. People could have tossed away his manuscripts as uninteresting yet they didn't. Another example is how many scenes of the Metropolis movie were cut during distribution and the original version only survived thanks to an Argentinian museum.

It gets even worse when political or religious arguments come into play. Greek art was considered heathen lore and only survived thanks to muslims preserving it. Mayan books were burned by missionaries. IS has been bombing many ancient sites it had control over. All these folks consider the stuff they destroy to be harmful and uninteresting. After all, a good muslim is only interested in qran, a good christian only in the bible. Fortunately we at least preserve the writings of the past centuries that we consider politically incorrect today instead of destroying them, but there are stories of british archives even in the present day "misplacing" evidence of crimes committed during colonization.

[1]: https://www.abc.net.au/news/2018-10-21/egypts-3-billion-doll...

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

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

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.

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://youtu.be/_kIpr6nSvjI

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!

>I'm also not clear if there were any that incorporated playtime "per note" dynamics

This[0] is a reproducing piano recording Ravel made in the 20s and was recorded from a Duo-Art piano in the 60s. Hearing Ravel play his own stuff a few years ago radically changed my idea of how Ravel's music should sound. (Pianist, I'd been playing Ravel for a couple of decades before that) This[2] has Prokofiev playing his own music.

"Many famous composers from around the world played their own works for the reproducing piano: Edvard Grieg, 1906 in Leipzig; Alexander Scriabin, 1910 in Moscow; Gabriel Fauré, c. 1913 in Paris; Nikolai Medtner, c. 1925 in New York."[1]

"This video is a practical demonstration and overview of how the Aeolian Duo-Art pneumatic reproducing player piano works, including how the system plays expressively by controlling the loudness of notes played with perforations on the roll."[3]

[0] https://archive.org/details/RavelPlaysRavel

[1] https://www.allclassical.org/player-piano-rolls-listening-to...

[2] https://www.youtube.com/watch?v=9uMRD2o6dJo

[3] https://www.youtube.com/watch?v=w-XrDw04P2M

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...

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...

Telarc have a number of albums of music reproduced from piano rolls -- this https://smile.amazon.co.uk/gp/product/B000009RCS/ is one of my favourite collections of classical works.

The sleeve notes tell of how modern scanning allowed a more complete reproduction of the notes played than contemporary players allowed, which by all accounts were already pretty good.

And here's the researcher discussing the project: https://www.youtube.com/watch?v=WqOtLSuPCJY

What if I write a program that does that translation agnostically of the specific work being translated?

And what if my program is parametrized by an ML model of unknown training data?

> What if I write a program that does that translation agnostically of the specific work being translated?

Then that program will likely produce non-copyrighted output for non-copyrighted input. But it's also likely going to sound pretty bad.

> And what if my program is parametrized by an ML model of unknown training data?

Then its output could be considered a derivative work of every work in that training corpus, and anyone whose creative work went into that training data will have a copyright claim on the results.

> Then its output could be considered a derivative work of every work in that training corpus, and anyone whose creative work went into that training data will have a copyright claim on the results.

Depends how tech savvy the judge is. An ML model is not really like a copy or reproduction, it's much more like a person's brain in that it aims to take general patterns from various sources.

You can apparently use real recorded instrument sounds with midi and music software, it’s used for professional artists too and some of the “instruments” are many GBs in size - don’t think a living soul could tell the difference.

It depends on how much effort you put into the midi transcription, but a trained musician could probably still tell the difference, especially during the transitions in between notes, and certain dynamics. Some sample libraries go as far as to record entire phrases played by a musician but then you're limited to what musical phrases those recordings include and how they were played (pitch shifting has gotten very good, but let's say you want a violin melody to sound softer, or plucked instead of bowed).

Instruments where notes/hits are isolated from other notes/hits like a piano or drumkit work wonderfully with sample libraries. But things like a guitar, violin, or trombone are still challenges. Even the orchestral libraries that are hundreds of gigs and thousands of dollars don't get it perfectly on their own. You definitely can make recordings that trick a trained musician, but not without tons of effort customizing your midi transcription to that specific sample library and you may have to compromise and avoid certain techniques that still don't translate to sampling well.

This is just talking about trained musicians though. Taking a midi transcription of something, spending 10 minutes adjusting velocity, and then loading up some EastWest samples would probably fool the average person.

Also quick edit but many people would consider something using samples of recorded instruments to still be a midi synthesizer because you're synthesizing a performance from samples, as opposed to recording entire phrases or even longer sections with a real musician and then arranging samples to create a recording. Not everyone would agree, but I'd guess the original commenter also had sample software in mind along with more traditional electronic synthesizers.

Even on a piano, two notes that are played independently, then later mixed, sound different than if those same two notes are played together on the piano. Something to do with the sound from one note affecting the string vibrations on the second note, and vice versa.

Very true, me saying they're totally isolated isn't 100% correct. That's sympathetic resonance, and other details like the pedals also slightly affects the resonance and pressing the pedals may be audible in a quiet/intimate recording. It's very subtle though and probably not noticeable by anyone who doesn't have lots of experience with a real piano. Many modern piano libraries actually do model/sample those properties though (I have no idea how).

While we're on it, drums aren't totally isolated either, they affect themselves. A snare roll is slightly different than just playing many snare samples rapidly because of the chains on the drum, and heavy cymbals also take some time to build up momentum so the first hit and tenth hit will sound different if it has not settled. These are all very subtle though compared to something like a guitar or violin or trombone where transitioning from one note sample to another sample digitally can be very obvious.

On the topic of how those modern libraries manage to reproduce those effects, couldn’t they have used either pure bruteforce (i.e., recording and sampling every combination of notes hit together) or some advanced modeling of physical properties of pianos to recreate how the sounds coming from piano strings would interact simultaneously? Or even better, some combination of those two approaches (modeling and extensive sampling)?

Disclaimer: i by no means have any expertise on the topic and am just as curious about figuring out how it actually works as the parent comment.

On a fairly serious note, how would I find out more of "how to" nature - if for example I wanted to have a project with my kids RaspberryPis and making music ?

Depends on what you're trying to do. If all you want is to play back MIDI files adequately, Firefox or VLC can do that just fine (I'm sure there are better dedicated software synths as well). For making music on the computer, I know there's a lot of software with different interfaces like virtual keyboards, trackers, and programs where you can drag-and-drop notes on a staff.

Since you're talking about the Raspberry Pi, maybe you're looking for a hardware. In this case, you can get MIDI piano keyboards that plug into the computer over USB (or can be used standalone). These can both send MIDI data to the computer and also receive it and play it with their internal synthesizer. (If you go really expensive, you can get actual grand pianos with sensors and actuators under each key, along with a subscription service that gives you access to recordings by professional piano players, replayable at your whim with exact dynamics so it's like they're in your living room.)

You can also build your own hardware and hook it up with a microcontroller; I've had good experiences with the Teensy, which is similar to an Arduino but can present itself to the computer as a USB MIDI device so you can build whatever creative/crazy instruments you want.

Should you come across a device with an actual MIDI port (a big round DIN socket with 5 pins), it's just a serial connection; you can get adaptors to convert them to USB.

To do it in the most legal way possible....

Look up the 1924 public domain arrangement in sheet music form.

Copy those notes into Musescore or an alternative.

Export the notes into MIDI.

Use Pianoteq to play the MIDI file. (It's one of the better sounding virtual instruments out there.) You can export a WAV file from Pianoteq.

Use this WAV file in your documentary on YouTube.

Prepare to get content ID'd by one of the big publishers anyways. You will have to defend the claim with proof that your audio is in the public domain.

I'm not a lawyer, but I happen to know a little about music licensing.

(IANAL) Also since your "work" will likely have some copyright since it itself a derivative work, I would go with the CC0 license so that others can use your work without fear of infringement of _your_ rights. https://creativecommons.org/share-your-work/public-domain/cc...

"CC0 helps solve this problem by giving creators a way to waive all their copyright and related rights in their works to the fullest extent allowed by law. CC0 is a universal instrument that is not adapted to the laws of any particular legal jurisdiction, similar to many open source software licenses. And while no tool, not even CC0, can guarantee a complete relinquishment of all copyright and database rights in every jurisdiction, we believe it provides the best and most complete alternative for contributing a work to the public domain given the many complex and diverse copyright and database systems around the world."

"Metropolitan Museum of Art: All public domain images in its collection are shared under CC0, which expanded their digital collection by over 375,000 images as well as provided data on over 420,000 museum objects spanning more than 5,000 years. Through the power of the commons, billions of people are now able to enjoy the beauty of the Met’s collections as well as participate in the continued growth of the commons, utilizing the infrastructure that makes greater collaboration possible." https://www.metmuseum.org/about-the-met/policies-and-documen...

His audio, a new recording, would NOT be public domain. But it would be HIS.

There is a vital difference between copyright of the written music and any particular recording of said music.

This isn't true. Replaying public domain music through mechanical means adds no creativity to the work, and thus has no copyrightable elements.

For reference: this was specified in article 14 of the new EU copyright directive. One of the few good changes in it: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CEL...

The type and timbre of the instrument used, the speed and volume of playback, any post-processing decisions, etc. are all creative choices and thus can make a resulting work copyrightable.

Be careful using generic music from the Internet.

Yes you are correct. The audio recording any person generates through the procedure I outlined above is now copyrighted by that person, who may then choose to place it in the public domain.

It's like if I recorded myself playing Für Elise. The recording I generate is owned by me, unless I release it to the public domain.

Yes, but then you as an author can choose to place your own performance in the public domain.

I thought that wasn't clearly established. I believe the assumption has been that you could call something public domain, and obviously people do so, but I don't believe it has been tested in court.

Not that I can see an obvious reason why it would be so tested, and frankly these are fuzzy memories from 15-20 years ago.

To what extent it is obvious just a simple statement that something is public domain would work depends on jurisdiction, which is why things like CC0 [1] exists.

[1] https://creativecommons.org/publicdomain/zero/1.0/legalcode

Concerning the possibility of making a "passable rendition" using virtual instruments, it's certainly possible, and it's generally called an orchestral mockup. Having done a lot of those, I can tell you this particular one would require a massive amount of work, most of which will be spent tweaking the dynamics for each note of each instrument or section; testing and selecting the most appropriate instruments from your (hopefully large and expensive) library; perhaps inputting rubato or tweaking the timing of notes; and massaging plugins from several different vendors into a cohesive whole.

Having done this, you could get a result that the vast majority of people would be unable to identify as synthesized.

In some places it will be necessary to do a bit of creative interpretation in order to accommodate for the limitations of your tools, for example, the clarinet trills at the beginning might need to be slowed down a bit. Nonetheless, a virtual instrument like SWAM Clarinets will get you there. These days, they're quite realistic: https://www.youtube.com/watch?v=Mmsehqcjc9g

Wow, that video is impressive. I played clarinet when I was in an orchestra decades ago and I was always jealous of the 1st Clarinet who got to play the Rhapsody in Blue intro. There are so many fun little things in there. I didn't think it was possible to simulate some of the techniques in MIDI.

The commonly performed orchestral arrangement won't be public domain for another 18 years - it didn't debut until 1942.

I wonder how different it has to be. If you were to switch around 2 notes in a couple phrases overall you’d probably end up with more or less the same song. I don’t know of anything that would do it automatically. I’m more curious about the subjectivity of what makes it different or not

See vanilla ice verse queen. Da dun dun dun da dun dun dun.

Others have answered, but in case it's not clear, for software there are two steps.

If you have the notes in a machine-readable format, a midi program can produce an audio recording of it. If you are willing to pay, you can get very good samples and the quality will be more than passable IMO.

Getting to a machine-readable format from a scan of sheet music is separate issue. You can either manually enter the notes into a computer (or pay someone on Fiverr), or there may be an ML program that will turn sheet music into something a computer can understand.

You’re looking for a midi something or another I think. You’ll have to take care that the midi file you use isn’t itself considered a creative work with its own copyright though (as befits an arrangement)

Any midi editor should be able to. You'd need to input it, if you use the paper sheet source.

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.

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

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.

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?

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.

The US Supreme Court said it's fine as long as Congress only extends copyright for a "limited time". Anything less than infinity is "limited".

* https://en.wikipedia.org/wiki/Eldred_v._Ashcroft

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/, 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

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.

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.

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

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

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.

> 95 years

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

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.

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

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.

> 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. :(

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.

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.

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.

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.

This will save United Airlines a _lot_ of money!

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

Are his prior compositions also Copyright free?

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.

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.)

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

I don't understand. What's a "principal thing?"

I would assume you might say "as a matter of principle", but that's just my guess.

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