Dead for 171 years, but still in copyright!

How can it be that music by a composer who died in 1840 is still in copyright? Does his immortal soul get the royalties?

By David Mellor

I was browsing through the sheet music section of a local charity shop. Actually I was groveling on the floor, because that's where they put slow-selling lines. But there is often interesting stuff there that you wouldn't normally find out about.

Since one of my hobbies is making an awful scratching noise on my violin, I was intrigued by a copy of Niccolo Paganini's Introduction, Theme and Variations on Nel Cor Piu Non Mi Sento by Giovanni Paisiello. These classical music titles can sometimes be long and complex can't they?

The reason I bought it is that it is one of the most difficult pieces in the violin repertory. So difficult in fact that parts of it are written out on two staves like piano music! I don't expect I'll ever be able to play it, but that doesn't mean I can't enjoy looking at it and dreaming.

Copyright issue

After untying the knot in my left-hand fingers caused by trying to scratch out the first page, I noticed a panel at the bottom...

"Copyright 1973 by International Music Company"

Hmm... Paganini died in 1840 and copyright only lasts for 70 years after death (to give a publisher chance to recoup their investment if a composer or songwriter is on their last legs), so how can this company have claimed copyright in 1973? Presumably this will be classed as corporate copyright in the USA and therefore last until 2068.

A little bit of maths will reveal that 2068 is 228 years after Paganini's death and 252 years after the death Paisiello, the original writer of the tune!

So how can copyright last 252 years?

252-year copyright

The answer to this is firstly that the publisher is, as we say in the UK, 'trying it on'. They are claiming that they own copyright in the music and hoping that users of the music will pay up without considering whether that claim is valid. This piece must be broadcast at least dozens of times every year and although royalties wouldn't amount to a lot of money, as the proverb says, every penny counts. There will be recordings too.

I feel confident in saying that there is no valid copyright in Paganini's music and it has fallen into the public domain, so no royalties are payable for any kind of use.

But the publisher has a trick up its sleeve, actually two tricks...

Publisher's tricks

Firstly, the publisher has not printed a straight copy of Paganini's manuscript, nor an edition that was published long enough ago to be public domain. It has typeset the music and is entitled to claim a copyright in that. That should mean that is is OK to broadcast or record Paganini's notes, but unauthorized duplication in print would not be allowed.

I feel that is fair because there is investment and labor involved that deserves recompense.

But there is another trick...

This isn't a verbatim copy of the notes that Paganini wrote, it is an edition. The editor is violinist Zino Francescatti who died in 1991. Francescatti has added indications on how the piece should be played, with respect to bowing, fingering and performance style. He may also have corrected notes that he felt had been wrongly placed in Paganini's manuscript.

This process is considered to be an original creative work and is therefore subject to copyright.

Moral question

Now here comes the moral question...

Some of Francescatti's additions are obvious, such as the indication to use the second left-hand finger on the first G in Bar 1. Only a lunatic would do otherwise. And wherever a violinist would have a choice in fingering, in any music, the choices are always obvious. Picking one choice out of two or three doesn't seem to me like much of a creative work.

Also there are the bowing indications. Well a violin bow can go one way or the other. Is it a creative act to say that a certain note should be played on an upbow? I think not.

Taken as a whole however, one could say that there is enough work that the editing amounts to being creative and therefore subject to copyright.

However a violinist might choose to ignore the editor's additions entirely. How then could any claim for royalties be justified?

Also, suppose the violinist memorizes the piece, then records or broadcasts it? Who could possibly know which edition he or she had originally learnt it from?

It still happens

Although the publication date of 1973 in this instance may seem like the distant past, this kind of practice still goes on.

For example I have in front of me a sheet music copy of Lord Cutt's March by that well-known composer A. Nonymous. It is published by the Associated Board of the Royal Schools of Music (in the UK) and is used in their current violin exam syllabus. And apparently, according to the panel at the bottom of the page, it is in copyright!

Once again I would contend that it is merely the edition (by Philip Ledger, who is still alive) that is in copyright and not the actual music.

In summary, copyright is a thorny, knotted, twisted and tangled issue. Copyright helps composers and songwriters earn a living. To disrespect the concept by claiming copyright where none exists doesn't help anyone but those who make false claims. This practice should stop.

Publication date: Friday July 15, 2011
Author: David Mellor