What is Public Domain?
Anything which legally has no owner is said to be in the public domain. Once therewas even public domain land, but now public domain is pretty much limited to intellectualproperty where copyright protection has expired or the creator has formally given his workto the public. There is no "official" list of public domain propertybecause something becomes public domain due to the absence of any law giving anyone claimto ownership. In effect, if no one on this entire planet can find any law whichgives them legal claim to a property, then that property is in the public domain.
What is intellectual property?
Intellectual property is any product of the human intellect where ownership can be claimedand protected by law. This includes creative works such as music, lyrics, books,poetry, or art as well as more typical business applications such as inventions, chemicaland biological advances, or computer software systems. Intellectual property is mostoften protected by copyright, patent, and trademark laws.
What is a Copyright?
A copyright is a "limited duration monopoly" provided by the U.S. Constitutionto authors, inventors, and other creative individuals. Copyright law is written toencourage the growth of knowledge by giving authors and artists limited time exclusiverights to use and profit from their creations. If a song or book or anything else isunder copyright protection, you cannot use it without the author's permission.Usually a music copyright owner will charge fees called "royalties" inexchange for permission to use his music.
What can be protected by copyright law?
Any original creative work expressed in a tangible form can be protected by copyright. In addition to music and lyrics, this includes items such as books, letters,paintings, movies, television programs, computer software, photographs, and video games. Ideas and facts cannot be protected by copyright law, although they can in someinstances be protected under patent or trademark law.
Does the title of a song have copyright protection?
A title cannot be protected under copyright law, and there are many songs with the same orvery similar titles. Titles can occasionally be protected by trademark law when the titlecan be proven to be directly identified with a product or organization.
Using Music
Do I have to work from a copy of a work with a 1928 or earlier copyright date?
Any work in the public domain can be freelyused by any one in any manner they choose. There is no law which requiresyou to have any proof of public domain in order to use a public domainwork. The problem is that it is virtually impossible to securely determinethat a work is in the public domain in the USA unless you have a copy of thework with a copyright date of 1928 or earlier. Most recognizable publicdomain songs have hundreds of arrangementsof the song which are stillunder copyright protection, and in many instances the arranger has significantlychanged the melody or lyrics from public domain versions. So to beconfident you are truly using a public domain work, you need to find a publicdomain version of the work before you begin your project. A reprint from asource you trust or a photocopy from a library are most adequate. You thenwork exclusively from your public domain source copy to change and arrange thesong as you like to create the music youneed for your project.
What happens if I accidentally use a piece of copyright protected music?
You would probably receive a "cease and desist" letter from the copyright holderadvising that you have infringed on his copyright. You would them present your PDresearch findings and attempt to reach an amicable agreement with the copyright holder. If you had done your research properly and had good reason to believe you had alegal right to use the music, hopefully the copyright holder would accept the mostreasonable royalties possible for the use you made of his song. However, making anhonest error in no way protects you from paying royalties due to a copyright holder.After you have already used the song, you are pretty much dependent on the copyrightholder's mercy when royalties are assessed. If there is any doubt about rights to asong, you should always obtain clearance through an attorney or rights clearanceorganization prior to any usage.
I play and sing at a local bar. Can I get in trouble if I perform popular music?
It is the responsibility of the bar owner to have proper licenses for the music used inhis bar. For public performance, the facility and not the performer is responsiblefor music licensing.
I found a piece of PD Sheet Music on the internet. Can I download it and use it? Can I sell it?
If someone places a piece of PD sheet music on their web site, it has been published andyou have a right to "Fair Use" of the sheet music. But the digital imagefile and the digital image of the sheet music are protected by copyright law and belong tothe owner of the web site This is still a gray area of law, and we highly recommendthe advice of an attorney. If the music is truly PD, there should be no problem withyour printing or downloading the music and using it to make your own derivative work. You can probably print several copies and distribute them among others involved inyour project, such as a chorus group or musical production cast. However, unless theweb site gives you specific other permissions, you are treading on thin legal protectionto go much beyond personal use of the actual image of the sheet music. If you postthe image on your own web site or sell digital or hard copies of the music, youpossibly infringe on the web owner's copyright protection. IMPORTANT: If the web site is inerror and the music is NOT public domain, YOU are liable for any royalties assessedby the copyright holder for any use you make of the song.
Can I copy the back pages of sheet music I purchased and spread them outso I do not have to turn the page?
Can I copy songs from CD's I purchased onto my computer and use the computer to play themin my bedroom?
Can I sing "Happy Birthday" to my husband at dinner tonight without payingroyalties?
The answer to all of the above is almost certainly yes, both legally and in common practice.When you purchase music, you generally you have a right to its PRIVATE use as longas you do not distribute it either for free, for no profit, or for profit. You alsohave a right to privacy at your dinner table tonight. However, all of these are"Fair Use" situations which can involve complicated legal concepts outside therealm of this web site. If you need a truly legal answer to this type of question,you will have to consult an attorney.
Music Sound Recordings
My company provides training classes, and we play background music duringclass. Can I use CD's from the local music store?
Any CD in the local music store is still under copyright protection; therefore, you cannotplay the music in public without paying royalties. Since you are charging for theclasses, you are especially leaving yourself open to royalty fees andpenalties. If you hold classes in a public meeting facility such as a hotel, checkwith the facility to see if it has a license to play music. If not, your companyshould license some royalty-free music or obtain a license from BMI, ASCAP, or SESAC.
I have a recording of "Aura Lee". Can I use it in my film?
No. Even though the song "Aura Lee" is in the public domain, virtually allsound recordings are under copyright protection until around the year 2067 You willeither have to make your own recording from a public domain source or obtain a license touse an existing recording. There are claims on the internet that sound recordingsmade in the U.S. prior to 1972 are in the public domain. We have had these claimsreviewed by several attorneys who have emphatically told us that this is NOT true. It is imperative that you consult an attorney before using a pre-1972 recordingthat you believe to be in the public domain.
We are a 15 year old band and have just learned to play "FreeBird". Can we record us playing it on our cassette deck and sell it to ourfriends?
Most any popular song on the radio, including "Free Bird", is still undercopyright protection. Therefore you cannot perform or sell the song without payingroyalties to the copyright owners. Copyright law does provide that anyone can recordand distribute any nondramatic musical work which has previously been recorded and published by paying mechanical royaltiesto the copyright holder. This is called a Compulsory License which isexplained in Circular 73 of the U.S. CopyrightOffice. Mechanical royalties are around 8 cents for each copydistributed for each song recorded. Go to Google or your favorite searchengine and search "mechanical license" and you should be able to findthe information you need to obtain a compulsory license and pay the required mechanicalroyalties so you can sell and distribute your recording.
We made a movie with Dad's video camera, and the movie theatre said wecould show it before the real movie Saturday morning. Since the band next door paidroyalties for their "Free Bird" recording, can we use it in our movie?
Sorry, but no. Licensing music for film, video, and TV is very different from soundrecordings. A license to use any popular song, even once in an amateur movie, wouldprobably cost thousands of dollars and could take months to acquire. For any"picture and sound" use of music, there is no automatic license similar to amechanical license for a sound recordings. Your best option is to get the band nextdoor to record some original music which they wrote, then make a deal directly with theband and their parents.
Public Domain Music Sources
I found a music book with an 1895 copyright notice. Are all the songs public domain?
Most likely yes. Carefully check both sides of the title page of the book. Ifit is an original book and 1895 is the only copyright notice on either side of the titlepage, all the music (and the book itself) are in the public domain in the US andprobably the entire world. Errors are often made when someone finds an 1895 date somewhere in a bookand looks no further. It is possible that the original copyright date was 1895, butthe book you found is a later revision of the original or a modified reprint. If youhave any doubt, check with a music reference librarian.
I have a piece of sheet music with a copyright date of 1921, but it sayscopyright renewed 1949. Is this Public Domain?
The 1909 copyright law provided 28 years of copyright protection, which was extendedanother 28 years if the copyright was renewed during the 28th year. This renewalextension was later increased to 47 years, giving a total of 75 years copyrightprotection. If this sheet music is an identical reprint of the original except forthe renewal notice, then this is a public domain version. But without apre-1929 copy to compare, you cannot be certain that this is the exact same work aspublished in 1921. To be absolutely certain you are working from a truepublic domain version, you will have to find a copy with only the 1921 copyrightdate.
I have a book with a 1932 copyright notice on the Title Page, but one ofthe individual songs has a copyright date of 1895.
You must be very careful to determine if this is a reprint or a 1932 arrangement of an1895 song. Since music notation plates were quite expensive to make, most musiccollections were reprints of the original, even into the 1950's or later. If youhave found a 1932 reprint, the music is PD but the source book is still under copyrightprotection. You can use the music to make your own derivative work, but you haveonly fair use rights to the book itself. However, if the author made his ownarrangement of an 1895 song, this arrangement is still under copyright protection. This is an area where research experience is extremely valuable, and you should check witha music reference librarian.
I have a music book with no copyright dates anywhere in the book, but itlooks very old. Are any of the songs public domain?
Do NOT use this book for PD research. It is quite possible for a 100 year old bookto look almost new and a quite recent book to look very old. There most likely is nocopyright date because the title page is missing. The copyright law does not providecopyright protection in most instances where there is no copyright notice, but thisis an area where you must be guided by an attorney or rights clearance agency.Without professional advice, this book is outside of the realm of amateur PD research.
I have a book with no copyright anywhere for the book, but one of thesongs has a 1915 copyright notice. Is the song public domain?
This is really a combination of the last two questions. Any book or music with nocopyright date is quite dangerous to use for PD research. Most often, the copyrightpage has been lost or torn out. Some books have been published without a copyrightdate, but it is not a common occurrence. However, if the song is truly a reprint ofa 1915 publication, it can be used as a PD source and it does not really matter when thebook was printed. Again, check with your reference librarian. If there is anydoubt, try to find a copy with an unambiguous copyright notice.
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