It is axiomatic that in order for any orchestral work to be performed by musicians, the instrumental parts must first be extracted from the orchestral score, copied on to parts, and distributed to the musicians in the orchestra. In the case of an orchestral score that was never published and copyrighted, but was definitely performed in public concerts on certifiable dates in known locales, does the copying of the parts for such a work legally constitute a first publication under US copyright law? EU copyright law?
How about a documented performance of a musical work in a public concert? Does that event legally count as a first publication establishing a copyright (or invalidating a later claim of copyright)? Yes, I know that a copyrighted work must be fixed in material form. Nevertheless, I believe a fairly recent major copyright trial in Europe (an Italian Baroque unpublished opera, Vivaldi, as I recall) was decided on the fact that the manuscript resided in the library of an opera house, where it had been performed. The manuscript was accessible to anyone; and it 'could have' been borrowed or copied for performances elsewhere--and thus it was likely first published long ago.
MS
First Publication of an orchestral work
Moderator: Copyright Reviewers
Re: First Publication of an orchestral work
I am not a lawyer, bla bla.
In US “Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication”.
The above statement depends on the definition of "copies", which is indeed very broad: the mean used to make copies is substantially irrelevant, so handwritten copies meet the definition. The concept of copy is anyway very important as it implies that the work has been "fixed in a tangible form", which is one of the basic requirements for copyright.
So, I think that making copies of parts of an orchestral work and distributing them to a group of persons for public performance meets the definition of publication. Obviously, there must be some evidence that copies were actually made and distributed. In theory, a composer may play parts to the players of the orchestra, who may memorize and play their parts without a physical copy is made. This seems quite unlikely, anyway it's a possibility that has to be excluded if one wants to claim that publication occurred.
I haven't found a similar definition of "publication" in Europe. It is likely, however, that "publication" corresponds to "making available to the public", therefore everything is present in a library and available for consultation by anyone may be technically considered as "published".
Max
In US “Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication”.
The above statement depends on the definition of "copies", which is indeed very broad: the mean used to make copies is substantially irrelevant, so handwritten copies meet the definition. The concept of copy is anyway very important as it implies that the work has been "fixed in a tangible form", which is one of the basic requirements for copyright.
So, I think that making copies of parts of an orchestral work and distributing them to a group of persons for public performance meets the definition of publication. Obviously, there must be some evidence that copies were actually made and distributed. In theory, a composer may play parts to the players of the orchestra, who may memorize and play their parts without a physical copy is made. This seems quite unlikely, anyway it's a possibility that has to be excluded if one wants to claim that publication occurred.
I haven't found a similar definition of "publication" in Europe. It is likely, however, that "publication" corresponds to "making available to the public", therefore everything is present in a library and available for consultation by anyone may be technically considered as "published".
Max
Re: First Publication of an orchestral work
Basically "performance" only is affected in Canada, not in the EU or the USA, the requirements for those two regions for publication needs to be done by an actual publisher for the sheet music (but in the EU its Life + 70 years, USA its all about the year of publication, however if its urtext/critical edition, USA is similar to the EU if it was published after 1978). Canada counts "performance" of any kind as the first publication of a work. The USA and the EU needs to have some kind of first publication in a tangible form or recording done by a publisher for it to count.Starrmark wrote:It is axiomatic that in order for any orchestral work to be performed by musicians, the instrumental parts must first be extracted from the orchestral score, copied on to parts, and distributed to the musicians in the orchestra. In the case of an orchestral score that was never published and copyrighted, but was definitely performed in public concerts on certifiable dates in known locales, does the copying of the parts for such a work legally constitute a first publication under US copyright law? EU copyright law?
How about a documented performance of a musical work in a public concert? Does that event legally count as a first publication establishing a copyright (or invalidating a later claim of copyright)? Yes, I know that a copyrighted work must be fixed in material form. Nevertheless, I believe a fairly recent major copyright trial in Europe (an Italian Baroque unpublished opera, Vivaldi, as I recall) was decided on the fact that the manuscript resided in the library of an opera house, where it had been performed. The manuscript was accessible to anyone; and it 'could have' been borrowed or copied for performances elsewhere--and thus it was likely first published long ago.
MS
As for copying the parts from a score, it depends solely on the death of the author, the year it was published and any extra contributors on the score that could affect the copyright status of the music in your region to legally download and make copies. If you were to make a typeset (that is with a new engraving) of the unpublished work, that would make your score the first publication of the work, which would have to be uploaded with a CC license because it would be under copyright everywhere.