Mahler "Fassung letzer Hand" copyright in US?

[klavier777]

Could someone please clarify some questions regarding different editions of Mahler?

I know that Mahler's Symphonies published in his lifetime are public domain in the US. My question is are the "Fassung letzer Hand" versions copyright in the US? Many of the "critical" editions published by the International Mahler Society and Universal Edition are "corrected" plates based on the original editions incorporating Mahler's later revisions. Since the editors are not adding anything original of their own and since the symphonies were all published before 1924, do the "Fassung letzer Hand" versions of the symphonies constitute enough originality to be differentiated with the earlier publications? In virtually all the publications before the new edition of the 5th in 2002, there are no editorial markings in sqaure brackets, etc. I'm actually more interested in the copyright status of the musical content of the"Fassung letzer Hand" and not the actual printed edition. Any advice regarding this would be appreciated thanks!

[Carolus]

Most informed legal opinion on the subject takes the view that if a case were to actually go to trial in US courts, critical editions such as the Mahler symphonies mentioned would not pass muster as derivative works because the editors added nothing original over and above what Mahler wrote, confining their work to correcting errors and the addition of missing dynamics, etc. from other public domain sources (like Mahler's manuscript, manuscript copies authorized by him, etc.). The essential nature of such editions is to not to include additions and interpretations inserted by an editor. In other words, such editions fail to meet the "threshold of originality" which is essential for a work to qualify for copyright protection. The problem is that the US copyright office accepted the registration of copyright for these and many others, which means one would have to literally bring a case before the courts to overturn the copyright claims. This would be a very expensive thing to do, and would likely requite at least seven figures in legal fees given that it would take several years to work its way up through the circuit and appeals courts to a final ruling by the supreme court.

Not even the larger reprint houses (Dover and Kalmus), who would have the most to gain from a ruling which invalidated the copyright claims on literally thousands of such editions, have seen fit to challenge UE, Baerenreiter, et al on the issue. The US system is an all-or-nothing situation in which a critical edition can be protected for the full term of life-plus-70 of the last surviving editor on the one hand (the situation now), or no protection whatsoever on the other (if the copyright claims for such editions are ever struck down in court). Other countries, notably Germany and Italy, have actually addressed this issue in a more thoughtful way - allowing a limited type of copyright of 25 (Germany) or 20 (Italy) years from publication for editions of this nature. The Mahler symphony editions would be a particularly apt case to bring to court as they were not even re-engraved (for the most part), but often consist of corrected reprints of the original scores issued in Mahler's lifetime.