Understanding Copyrights for Sheet Music

"Copyrights (the equivalent of copyright in Common Law countries) are established by the respective laws of each of these countries. These legal regimes confer on the authors of original works an exclusive right of use and exploitation. Copyright holders have the right to: Make public the original work, in whole or in part; Reproduce or adapt (or authorize a third party to reproduce or adapt) the original work, in whole or in part, by any process of his or her choice; Undertake or authorize the public performance of the work, by any process of his or her choice; Adapt the original work; Distribute copies of the original work, and authorize any communication to the public in connection with the performance of the original work. Conversely, a work protected by copyright prevents anyone else from copying, distributing or representing this original work.
There are two main categories of rights: statutory copyright, also known as droit d'auteur, which protects the work from the day it is created; and contractual rights, including publishing rights, which derive from a contractual chord between the author and a publisher." - Yaël Cohen-Hadria

This article was written by Yaël Cohen-Hadria, an intellectual property lawyer at Marvell Avocats Paris. We thank her for her contribution.

1. Statutory copyright

The scope of copyright

The copyright holder

The author is a creator.

The author is the person who has contributed in full - or in part - to an intellectual and original contribution in the process of creating the work. In the case of sheet music, for example, the creator is either :

• Composer: The person who creates the music.

• The arranger: The person who arranges the musical work. The arranger may in some cases be the creator, if his or her arrangements are considered to be an intellectual and original contribution, as defined above, such as piano reductions or choral arrangements.

• Librettist: The creator of the text for a musical work, especially vocal or choral music.

Copyright duration

As far as the minimum term of protection is concerned, the Berne Convention stipulates that protection must be granted until 50 years after the death of the author. A number of countries, including the United States, France and Germany, have increased this term of protection to 70 years after the author's death.

To complicate matters, each country has its own specificities when it comes to copyrights. For anonymous, collective or pseudonymous works, the term of protection expires 50 to 70 years after the work has been made available to the public.

If the author of an anonymous work reveals his or her identity during the period in question, the term of protection will be extended by 25 years.

What happens when the protection period expires?

When the term of copyright protection expires, the work falls into the "public domain", meaning it can be used by anyone, freely and without permission.

To determine whether an original work has fallen into the public domain, certain chronological, geographical and material parameters need to be taken into account. These will depend on the legislation of each country.

• Chronological parameters: The duration of copyright protection depends on the date of creation or publication of the work.

• Hardware parameters: different versions of the same partition may be protected by different copyrights. So, if one version is in the public domain, it doesn't necessarily mean that the other versions are too.

• Geographical parameters: In the USA, works published before 1923 are in the public domain because their copyright has expired. However, even if a work is in the public domain in the U.S., it may be protected in other countries.

Example - music publishing Urtext Urtext is a German term for historically significant musical editions that would normally fall into the public domain, but are copyrighted to the publisher. Urtext editions are either scores handwritten by the author or with annotations in the author's hand, or an edition considered to be a creation different from previous editions. Urtext editions are protected for 25 years.

As a general rule, it is always prudent to rigorously check the status of an original work before using or distributing it, even if it appears to have fallen into the public domain.

To sum up:

• Unprotected work: the work is not protected by copyright.

• Protected work: the work is protected by copyright and/or publishing rights.

Is this work in the public domain?

Summary valid for 2017

Canada (China, Korea, Japan, South Africa)

• The last composer/arranger/publisher/librettist has died:

  • Before 1967: YES

  • After 1966: NO

• If the author died after 1949 and the work was published after his death, it may be protected by copyright for 50 years from the date of publication.

United States

• A work of any kind, created by anyone :

  • Published before 1923: YES

  • Published after 1922: NO

European Union

• The last composer/arranger/publisher/librettist has died:

  • Before 1947: YES

  • After 1946: NO

• If the work was first published more than 70 years after the author's death, it may be protected by copyright for 25 years from the date of publication.

2. Contractual rights

Authors may assign their copyright to a publisher.

For example, Kaija Saariaho sold her publishing rights to Chester Music, Matthias Pintscher to Bärenreiter, Thomas Adès to Faber Music, and so on.

In this case, the publisher's rights to an original work derive from the contract with the author.

The publisher then enjoys all or part of the economic rights to the work, and may in turn assign or transfer them, within the limits imposed by the contract. It should be noted, however, that moral rights cannot be assigned and will always belong to the creator and his successors in title. It is therefore imperative to draft such contracts carefully.

3. Copyrights in the digital age

Copyright applies regardless of the format of the score (digital or paper). However, publishing or sub-publishing contracts often include clauses specific to digital and paper formats, in order to protect the copyright owner.

Thus, the digitization of an original paper score or the copying of an original digital work are governed by legal or contractual copyright provisions.

This means that :

• For works protected by copyright, official authorization must be obtained from the publisher and/or author. This authorization may be the subject of a contract or a specific license.

• For works in the public domain, digitization is authorized because the work is no longer protected by copyright. All types of reproduction are therefore free.