Chorale preludes based on copyrighted hymns... ok or not?

[Rob Peters]

I'm planning a series of organ chorale preludes based on well-known Dutch hymn tunes.
Problem is, many of these tunes are still copyright protected since the composers died less than 70 years ago (I'm talking about EU copyright, obviously).
No existing harmonizations are used, only the plain melodies.

So I'm wondering

- is it necessary to ask permission for the copyright holders in order to use the tunes? I'm not aware of any form of "fair use" in EU copyright that would allow new artistic creations based on copyrighted material, but maybe there's some kind of exception for church/liturgical use of these melodies?
- since only the melodies are used (with their titles), I assume the copyright status of the texts doesn't matter?

Thanks for your advice!

[DBMiller]

I'm planning a series of organ chorale preludes based on well-known Dutch hymn tunes.
Problem is, many of these tunes are still copyright protected since the composers died less than 70 years ago (I'm talking about EU copyright, obviously).
No existing harmonizations are used, only the plain melodies.

So I'm wondering

- is it necessary to ask permission for the copyright holders in order to use the tunes? I'm not aware of any form of "fair use" in EU copyright that would allow new artistic creations based on copyrighted material, but maybe there's some kind of exception for church/liturgical use of these melodies?
- since only the melodies are used (with their titles), I assume the copyright status of the texts doesn't matter?

Thanks for your advice!

IMSLP (PML-CA) will host any material which is in the public domain in Canada, so, as far as that goes, works by anyone who died in 1971 or earlier are (generally) OK. Derivatives of PD-Canada works are perfectly OK to publish in Canada. But, in any case, I will answer your questions as relate to non-public domain composers.

• Since melodies are copyrightable, permission is necessary to substantially re-use a copyrighted melody. (Of course, if the melody itself is in the public domain, then even if someone else has written something still copyrighted which is based on that melody, it is fine to use the same underlying public domain melody yourself.)
• In Canada (and the US), the copyright terms of text and musical compositions are separate, so the status of the text wouldn't matter if you don't use it. However, this is not the case in the Netherlands, or in the EU generally. There, the copyright in both the text and the music lasts until 70 years after the death of the last surviving contributor to either. However, this only applies when the text and the music were created to be used together, and not to originally separate works that are put together later.
• While Dutch law (unlike many other countries) does provide an exception to copyright for performance of works in religious services ("Als inbreuk op het auteursrecht op een werk van letterkunde of kunst wordt niet beschouwd de gemeentezang en de instrumentale begeleiding daarvan tijdens een eredienst."), I don't think this would apply to the creation of derivative works. In any case, derivative works of copyrighted melodies cannot be hosted here, whether or not they are intended to be used in religious services.

[Rob Peters]

That's a very clear and detailed answer, thank you very much!

I guess I'll have the choice of either restricting myself to public domain material - or facing the grueling task of asking dozens of individual copyright holders for permission...

[Sallen112]

So there is a trade off depending on what it is, a lot of times if its a modern tune that is popular, it most likely is under copyright everywhere and would love to use it, but now if you have a lot of them you want to use, then the tradeoff is as you said, you have to ask every single copyright holder for permission, plus its unlikely you will get free permission to use it. But if its older, most likely more than Life + 70, then you won't have an issue.

You better off if you want your project done faster, is to stick to public domain sources for everything, and work around that, unless your hell bent on using it in your work, then its going to take you longer to get it finished since you need permission.