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Music Clearance

-Public Domain

Public Domain (or PD, for short) is probably the most controversial and misunderstood topics in copyright, with enough contention and debate to fill several doctoral theses. Here are the highlights:

What is the PD?: What cannot be claimed as private property under copyright law is considered to be public domain. Therefore, a public domain work has to be defined by the protections that no longer cover it. Since these protections are in flux, extreme care must be taken before claiming something is in the public domain.

United States Copyright law, as of 1976, sets public domain at 50 years after the death of the last surviving author, but this only pertains to works created after 1978. In reality, we are still very much in the era of the 1909 law, which protects works up to 75 years from date of publication. The protections of the 1909 law will therefore be with us through the year 2052. Further, keep in mind that the US law is only valid in the United States; if you are concerned with foreign uses, read on.

In territories outside the US, The Berne Convention (which dates back to 1886, but which the United States did not join until May 1, 1989) set protection at 50 years from the death of the last surviving author. While most countries followed this convention, in 1995, the members of the European Economic Community passed an initiative to extend copyright to 70 years. Some countries, notably Italy, are claiming additional protection on works of their national composers (i.e. Verdi, Puccini), pushing the term to 85 years.

Determining Public Domain status would appear to be a relatively simple matter in the United States; simply add 75 years to the original date of publication (see pitfalls below).

Determining Public Domain outside the United States is a more complex proposition, because it requires both knowledge of the complete authorship of a work, plus confirmation all the author’s death dates.

Here are some common public domain pitfalls:

Protected Editions. The songs of Steven Foster are in the public domain, but if taken from a book published in 1970, you will be infringing the copyright of the book publisher. The source, as well as the work, must both be in the public domain prior to use.

Protected Musical Arrangements. The folksong "LITTLE BROWN JUG" is public domain in is original form, but the Glenn Miller swing version is fully protected by copyright.

Recordings: Mozart is in the Worldwide public domain, but taking music from a brand-new digital CD performance infringes the copyright of the record company.

Using US Public Domain works abroad. Many works are public domain in the United States by virtue of their publication dates, but protected abroad because of the author’s death date. Irving Berlin published "I Love a Piano" in 1912 (making it PD in the US in 1987), but because Berlin died in 1990, the song is protected in Canada and beyond through at least 2040.

For assistance in confirming public domain status, or obtaining cleared editions of public domain works, please contact emginc@clearance.com

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