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IF IT IS BAROQUE, FIX IT: THE NEED FOR MORE

CERTAINTY OF COPYRIGHT STATUS FOR CLASSICAL

MUSIC WORKS PUBLISHED BETWEEN 1925 AND 1978

I. INTRODUCTION

Classical music is all around us. Although dismal concert attendance numbers

suggest otherwise, classical music still has an important place in modern culture—from

elevating emotions in film soundtracks to wooing consumers through television

commercials.

Edvard Grieg’s Peer Gynt appeared in a Coca-Cola commercial aired

during the Pyeongchang 2018 Olympics.

Advertising agencies have used Pyotr Ilyich

Tchaikovsky’s famous 1812 Overture to sell products ranging from breakfast cereal to

a drug that treats overactive bladder.

Independence Day celebrations around the nation

also frequently feature the piece.

Nonclassical artists surreptitiously submerge classical works into popular music.

The verse of Eric Carmen’s song “All by Myself,” also covered by Celine Dion,

originates in Sergei Rachmaninoff’s Piano Concerto no. 2 in C Minor.

Rapper Nas

used Ludwig van Beethoven’s “Für Elise” throughout his song “I Can.”

Nas also used

Frédéric Chopin’s Étude in C Minor, op. 10, no. 12 in his song “A Queens Story.”

Lady Gaga’s hit song “Alejandro” begins with Vittorio Monti’s Czardas,

which itself

comes from a traditional Hungarian folk dance.

Ludacris’s song “Coming 2 America”

cleverly and appropriately contains Antonín Dvořák’s Symphony no. 9 in E Minor, op.

* Yunica Jiang, J.D. Candidate, Temple University Beasley School of Law, 2020. I would like to thank

Professor Erika Douglas for her feedback, guidance, support, and encouragement throughout this process. I

also want to extend my gratitude to Dean Donald Harris and Aaron Datsko for their contributions. Thank you

to Emily Berg, Elisa Hyder, Forrest Lovett, Brittany Steane, and Temple Law Review for their thoughtful edits

and suggestions. I dedicate this piece to the many music teachers in my life, all of whom inspired my love of

classical music that made this paper possible.

1. See Baroque Music: A Beginner’s Guide, CLASSIC FM, http://www.classicfm.com/discover-

music/periods-genres/baroque/baroque-music-beginners-guide/ [https://perma.cc/V268-MEGP] (last visited

Feb. 1, 2020).

2. See, e.g., Joanne Kaufman, Selling Products with a Swelling Score, N.Y. TIMES (Mar. 25, 2018),

http://www.nytimes.com/2018/03/25/business/media/classical-music-advertising.html [https://perma.cc/

B3XK-39FR].

3. Id.

4. Id.

5. See, e.g., James Bennett, II, Here’s Why the ‘1812 Overture’ Has Held onto Independence Day,

WQXR (July 3, 2017), http://www.wqxr.org/story/heres-why-1812-overture-has-held-independence-day/

[https://perma.cc/4C2E-YLC4].

6. Leo Hickman, Five Pop Songs with Classical Roots, GUARDIAN (July 23, 2009, 7:05 PM EST),

http://www.theguardian.com/music/2009/jul/24/pop-classical-music [https://perma.cc/K9R2-G7PX].

7. ERIC CARMEN, All by Myself, on ERIC CARMEN (Rhino Entm’t/Arista Records 1975).

8. NAS, I Can, on GOD’S SON (Columbia Records 2002) at 0:06; see also Hickman, supra note 6.

9. NAS, A Queens Story, on LIFE IS GOOD (Def Jam Recordings 2012) at 3:29–4:28.

10. LADY GAGA, Alejandro, on THE FAME MONSTER (Interscope Records 2009) at 0:00–0:33.

11. See Andrea Kapell Loewy, Czardas/Italian Arias, 41 FLUTIST Q. 59, 59 (2015).

26 TEMPLE LAW REVIEW ONLINE [Vol. 92

95 (“From the New World”),

which was originally inspired by the Native American

themes that Dvořák heard when he was the director of the National Conservatory of

Music in New York.

“Coming 2 America” also plays with the famous Dies irae

theme from Wolfgang Amadeus Mozart’s Requiem throughout.

These examples illustrate that musical compositions seldom develop in a

vacuum—composers often borrow and modify other musical works to shape their own.

This issue most recently surfaced in 2018 in the Ninth Circuit case Williams v. Gaye.

The Ninth Circuit held that Robin Thicke and Pharrell Williams’s song “Blurred Lines”

infringed Marvin Gaye’s copyright for “Got To Give It Up.”

However, the court

reached its holding through procedural issues instead of substantively analyzing the

music.

The most frequently performed classical works come from the public domain.

Public domain works have no exclusive intellectual property ownership

and in

general tend to be older.

Not surprisingly, all of the examples above—commercials

and popular music—feature classical music in the public domain.

The use of more recent works is an exception rather than the norm. A 2017

Lincoln Motor Company commercial played Dmitri Shostakovich’s Waltz no. 2 in the

12. LUDACRIS, Coming 2 America, on WORD OF MOUF (Def Jam Recordings 2001) at 1:47; David K.

Israel, 6 Pop Songs That Rip Off Classical Music, MENTAL FLOSS (Jan. 26, 2019),

http://www.mentalfloss.com/article/20706/6-pop-songs-rip-classical-music [https://perma.cc/X6WV-SECV].

13. See John Clapham, The Evolution of Dvorak’s Symphony “From the New World,” 44 MUSICAL Q.

167, 167–69 (1958).

14. See, e.g., LUDACRIS, supra note 12, at 0:04–0:26.

15. 895 F.3d 1106 (9th Cir. 2018).

16. Williams, 895 F.3d at 1115–16.

17. Id. at 1138; Krista L. Cox, If Mozart and Beethoven Were Alive Today, Would They Be Guilty of

mozart-and-beethoven-were-alive-today-would-they-be-guilty-of-copyright-infringement/ [https://perma.cc/

4QEH-DH4M].

18. See infra notes 216–217 for a discussion of the most widely performed orchestral and operatic

works.

19. Richard Stim, Welcome to the Public Domain, STAN. U. LIBR., http://fairuse.stanford.edu/

overview/public-domain/welcome/ [https://perma.cc/JBQ8-2VGW] (last visited Feb. 1, 2020).

20. See infra note 125 and accompanying text.

21. All works published prior to 1925 are in the public domain as of January 1, 2020. E.g., PETER B.

HIRTLE, CORNELL U. LIBR., COPYRIGHT TERM AND THE PUBLIC DOMAIN IN THE UNITED STATES 1–2 (2020),

http://copyright.cornell.edu/sites/default/files/2020-01/Copyright%20Term%20and%20the%20Public%

20Domain%20in%20the%20United%20States%20January%202020.pdf [https://perma.cc/FYY7-AVF7]. The

composers discussed above—Grieg, Tchaikovsky, Beethoven, Chopin, Monti, Dvořák, and Mozart—all

published their works before 1925. See, e.g., Timeline of Composers, CLASSICAL NET,

http://www.classical.net/music/composer/dates/comp9.php [https://perma.cc/G559-38GY] (last visited Feb. 1,

2020); Vittorio Monti, BBC, http://www.bbc.co.uk/music/artists/730b87ad-1774-43a0-9a65-5ec9314c0cf1

[https://perma.cc/PP9Y-UGH6] (last visited Feb. 1, 2020). Therefore, all of those works are in the public

domain in the United States. See HIRTLE, supra, at 1–2. Sergei Rachmaninoff composed some of his works

prior to 1925. See Sergey Rachmaninoff, ENCYCLOPEDIA BRITANNICA, http://www.britannica.com/biography/

Sergey-Rachmaninoff [https://perma.cc/YBV8-TXV6] (last visited Feb. 1, 2020). He composed the Piano

Concerto no. 2 in 1901. Id. It is currently in the public domain, but it was not in the public domain when Eric

Carmen wrote the song in 1976. See Hickman, supra note 6.

2020] IF IT IS BAROQUE, FIX IT 27

background of a holiday ad.

Shostakovich composed his works more recently, so his

works are still under copyright protection.

This rare use is just one example

illustrating a broader pattern that older classical pieces are more prevalent than more

modern ones.

There are many reasons why more modern classical works are not performed as

frequently as older works. People may have an aural preference for older classics and

eschew twentieth century composers like Arnold Schoenberg and Alban Berg because

of inherent music tastes.

The cost of performing copyrighted works also exceeds the

cost of performing public domain works,

so some orchestras tend to avoid modern

works for financial reasons.

Another possible explanation is that people avoid some

modern pieces because they cannot ascertain their copyright status, preferring to err on

the side of caution to avoid copyright infringement. This Comment argues that the

uncertainty of the copyright status of classical works and editions created between 1925

and 1978 not only discourages the dissemination of those works but also dissuades

nonclassical artists from incorporating classical pieces into their own works.

The copyright statuses of many works published between 1925 and 1978 are not

easily accessible because the complete, comprehensive records can be found only at the

physical location of the U.S. Copyright Office.

Access poses a problem not only

because of the uncertainty in copyright status but also because different editions of one

work can have different copyright dates.

For example, Gustav Mahler originally

published his Symphony no. 1 in 1899.

The second edition, published in 1906, is in

22. See Kaufman, supra note 2.

23. See Georg Predota, Minors of the Majors Dimitri Shostakovich: Suite for Variety Orchestra,

INTERLUDE (Sept. 12, 2016), http://www.interlude.hk/front/minors-majors-dimitri-shostakovich-suite-variety-

orchestra/ [https://perma.cc/8H64-GLZ8] (noting that Shostakovich composed his works, including the Suite

for Variety Orchestra that contains Waltz No. 2, primarily between 1934 and 1938).

24. See, e.g., Alex Ross, Why Do We Hate Modern Classical Music?, GUARDIAN (Nov. 28, 2010, 4:30

PM), http://www.theguardian.com/music/2010/nov/28/alex-ross-modern-classical-music [https://perma.cc/

YP2Y-W3KX].

25. Marc Parry, Supreme Court Takes Up Scholars’ Rights, CHRON. HIGHER EDUC. (May 29, 2011),

http://www.chronicle.com/article/A-Professors-Fight-Over/127700 [https://perma.cc/6RSD-U9UM].

26. See Appellants’ Opening Brief at 17, Golan v. Gonzales, 501 F.3d 1179 (10th Cir. 2007) (No.

05-1259) (noting that the orchestra conductor chose public domain works because of cost reasons) [hereinafter

Appellants’ Opening Brief in Golan v. Gonzales].

27. As of January 1, 2020, works from 1924 have entered the public domain in the United States, but

works from 1925 are not. Works published prior to 1978 do not follow the current Copyright Act’s copyright

terms. Therefore, works between 1925 and 1978 have more uncertain status. Class of 2020: New in the Public

Domain Today!, PUB. DOMAIN REV. (Jan. 1, 2020), http://publicdomainreview.org/blog/2020/01/public-

domain-in-2020 [https://perma.cc/FXU9-APW3].

28. Historical Public Records Program, U.S. COPYRIGHT OFF., http://www.copyright.gov/historic-

records/ [https://perma.cc/HKM8-5ZWM] (last visited Feb. 1, 2020) (stating that because copyright records

were handwritten or typed and stored at the Copyright Office prior to 1978, those records have only

traditionally been available to view in person at the Copyright Office Reading Room in Washington, D.C.).

29. See, e.g., Symphony No.5, Op.67 (Beethoven, Ludwig van), INT’L MUSIC SCORE LIBR. PROJECT,

http://imslp.org/wiki/Symphony_No.5%2C_Op.67_(Beethoven%2C_Ludwig_van) [https://perma.cc/Z5CP-

UY95] (last visited Feb. 1, 2020) (providing five different editions of the piece, each with a different

publication date, with the earliest published in 1862 and the most recent published in 2008).

30. Mahler Symphony 1, GUSTAVMAHLER.COM, http://gustavmahler.com/symphonies/mahler-

symphony-1.html [https://perma.cc/9J6U-Q8ZQ] (last visited Feb. 1, 2020).

28 TEMPLE LAW REVIEW ONLINE [Vol. 92

the public domain and accessible to all users around the globe.

But the later version

International Mahler Gesellschaft edited and published in 1967 is not in the public

domain in the United States.

While users in the United States can freely access the

1906 edition of Mahler’s Symphony no. 1,

they do not have commensurate access to

the 1967 edition of the same work.

Therefore, knowing the original publication date

of a classical work is insufficient in determining whether it resides in the public

domain; users would have to investigate further to ascertain the copyright status of the

particular edition they want to use.

This Comment argues that the current administration of copyright laws in the

United States creates disincentives for the performance of music from 1925 to 1978.

Section II begins with an overview of copyright law in the United States as it relates to

sheet music. Section III describes the current state of classical music in the United

States, and the impact of the digital age on sheet music. Section IV concludes by

arguing a central repository of copyright records would better promote classical music

from that time period.

II. O

VERVIEW OF COPYRIGHTS AND SHEET MUSIC

Classical music seldom receives attention in the United States. However, the

plight of some twentieth century classical works, like Russian composer Sergei

Prokofiev’s Peter and the Wolf, entered the limelight in 2012 when the Supreme Court

decided Golan v. Holder.

This Section explores classical sheet music and the legal issues involved in the

music publishing industry. Part II.A describes the history of copyright law in the

United States as it relates to sheet music. Part II.B explains how classical music is

copyrighted in the United States. Part II.C expands on this by explaining what is

required to copyright sheet music and the relationship between sheet music and the

public domain.

A. Looking Bach

: History and Overview of U.S. Copyright Law

In the United States, copyright protection originates in the U.S. Constitution and

other statutory provisions.

This protection extends to both published and unpublished

31. See Symphony No.1 (Mahler, Gustav), INT’L MUSIC SCORE LIBR. PROJECT,

http://imslp.org/wiki/Symphony_No.1_(Mahler,_Gustav) [https://perma.cc/A7NU-TYY8] (last visited Feb. 1,

2020).

32. Id.

33. See id. (noting the 1906 edition is in the public domain).

34. See id. (noting the 1967 International Mahler Gesellschaft edition is “Non-PD” in the United

States).

35. 565 U.S. 302 (2012); see, e.g., Nick Baumann, Hey Kids, Wanna Listen to “Peter and the Wolf”?

Then Pay Up., MOTHER JONES (Oct. 6, 2011), http://www.motherjones.com/politics/2011/10/peter-wolf-

36. See Johann Sebastian Bach (1685–1750), CLASSIC FM, http://www.classicfm.com/composers/bach/

[https://perma.cc/ZP8N-7HDQ] (last visited Feb. 1, 2020).

37. See U.S. CONST. art. I, § 8, cl. 8; see also 17 U.S.C. § 102(a) (2018). A copyright is a form of

intellectual property law that protects authors’ original works that are fixed in a tangible medium of

2020] IF IT IS BAROQUE, FIX IT 29

works.

Because a copyright has a limited period of exclusivity, copyright protection

effectively grants the public access to creativity when the copyright expires.

Accordingly, at different points in time, copyright protection benefits private

individuals or authors as well as the public.

A central debate among scholars is the purpose of the American copyright system

and who should benefit from copyrights.

While some scholars have argued that

benefit the individual author.

The public-private tradeoff in copyright protection

highlights the tension between the copyright owner’s exclusive right—or the ability to

prevent others from copying the owner’s work—and the public’s ability to access this

work.

The debate about the purpose of copyrights has persisted from the inception of

the roots of copyright law in the United States, followed by a discussion of how

1. Prelude: Forming Copyright Law in the United States

U.S. copyright law dates back to the nation’s birth.

The lead-up to the

Continental Congress involved discussions on whether there should be laws to protect

books.

However, the Articles of Confederation did not explicitly mention

expression. Copyright in General, U.S. COPYRIGHT OFF., http://www.copyright.gov/help/faq/faq-general.html

[https://perma.cc/4YC8-8GGN] (last visited Feb. 1, 2020).

38. 17 U.S.C. § 104(a)–(b); see also Copyright in General, supra note 37.

39. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).

40. See id. (noting the limited grant of a copyright “is intended to motivate the creative activity of

authors and inventors by the provision of a special reward, and to allow the public access to the products of

their genius after the limited period of exclusive control has expired”).

41. See, e.g., Hannah Dubina, Comment, Decomposing the Precarious Future of American Orchestras

in the Face of Golan v. Holder, 60 UCLA L. REV. 950, 955 (2013) (noting the Copyright Clause “has spawned

much debate about the purpose of the American copyright system”).

42. Compare 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 1.03[A], Lexis

(Matthew Bender & Co., rev. ed., database updated Dec. 2019) (“[T]he primary purpose of copyright [is] not

to reward authors but rather to secure ‘the general benefits derived by the public from the labors of authors.’”

(emphasis added) (quoting Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932))), with Peter Burger, The Berne

Convention: Its History and Its Key Role in the Future, 3 J.L. & TECH. 1, 56–57 (1988) (“The first and most

important step which national and international lawmakers must take is to focus copyright on authors and resist

the politically attractive temptation of trampling authors’ rights in favor of easy access to authors’ works. The

individual rights of authors, including authors’ personal relationship to their works, must become the central

focus of contemporary efforts.” (footnote omitted)), and Jeanne C. Fromer, An Information Theory of

in offering the incentive of limited copyright protection to creators to generate material that is valuable to

society.”).

43. William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL

STUD. 325, 326 (1989) (“Copyright protection—the right of the copyright’s owner to prevent others from

making copies—trades off the costs of limiting access to a work against the benefits of providing incentives to

create the work in the first place.”).

44. See Note, Constitutional Limits on Copyright Protection, 68 HARV. L. REV. 517, 518 (1955).

45. See, e.g., Terry Hart, Letter from Joel Barlow to the Continental Congress (1783), COPYHYPE (Jan.

28, 2013) http://www.copyhype.com/2013/01/letter-from-joel-barlow-to-the-continental-congress-1783/

(“There is certainly no kind of property, in the nature of things, so much his own, as the works which a person

30 TEMPLE LAW REVIEW ONLINE [Vol. 92

copyrights.

This lack of a nationwide copyright provision changed during the

Constitutional Convention of 1787.

While drafting the U.S. Constitution, James

Madison and Charles Pinckney separately advocated for copyright protection.

Madison proposed giving Congress the power “[t]o secure to literary authors their

copyrights for a limited time” and “[t]o encourage by premiums [and] provisions, the

advancement of useful knowledge and discoveries.”

Pinckney suggested “secur[ing]

to [a]uthors exclusive rights for a certain time.”

These proposals eventually evolved into Article I, Section 8, Clause 8 of the U.S.

Constitution.

This clause gives Congress the power “[t]o promote the Progress of

Science and useful Arts, by securing for limited Times to Authors and Inventors the

exclusive Right to their respective Writings and Discoveries.”

The Copyright Clause

established the foundation for U.S. copyright law by providing exclusive rights for a

certain period of time to promote “Science,” a word which modern courts and

commentators have interpreted as general knowledge or learning.

2. Fugue: Expanding the Duration and Scope of Copyright Protection

Both the duration and scope of copyright protection have evolved throughout U.S.

history. The length of copyright protection has continuously increased over time.

Congress enacted the first copyright law in 1790.

The Copyright Act of 1790 (1790

Act) granted authors “of any map, chart, [or] book” the right to print, reprint, publish,

or sell for a term of fourteen years.

The 1790 Act also permitted authors to extend or

renew the original copyright term another fourteen years.

A few decades later,

Congress extended the initial copyright term from fourteen to twenty-eight years by

passing the Copyright Act of 1831 (1831 Act).

Like the 1790 Act, the 1831 Act also

originates from his own creative imagination . . . . [I]t is a principle of natural justice that he should be entitled

to the profits arising from the sale of his works as a compensation for his labor in producing them . . . .”

(quoting Letter from Joel Barlow to the Continental Congress (1783))).

46. Irah Donner, The Copyright Clause of the U.S. Constitution: Why Did the Framers Include It with

Unanimous Approval?, 36 AM. J. LEGAL HIST. 361, 361 (1992); Note, supra note 44, at 518.

47. Note, supra note 44, at 519.

48. Id.

49. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 325 (Max Farrand ed. 1911).

50. Id.

51. U.S. CONST. art. I, § 8, cl. 8.

52. Id.

53. E.g., Ned Snow, The Meaning of Science in the Copyright Clause, 2013 BYU L. REV. 259, 265.

54. See The 18th Century, U.S. COPYRIGHT OFF., http://www.copyright.gov/timeline/

timeline_18th_century.html [https://perma.cc/P3CG-AWGH] (last visited Feb. 1, 2020) (“These amendments

[since the first copyright law] greatly changed what works were covered under copyright, for how long, and

how to register a work.”).

55. A Brief Introduction and History, U.S. COPYRIGHT OFF., http://www.copyright.gov/circs/circ1a.html

[https://perma.cc/DS57-RLZ3] (last visited Feb. 1, 2020).

56. Copyright Act of 1790, ch. 16, §1, 1 Stat. 124, 124, http://www.copyright.gov/history/1790act.pdf

[https://perma.cc/B4PC-D3L2].

57. Id.

58. Copyright Act of 1831, ch. 16, §1, 4 Stat. 436, 436 (repealed 1870).

2020] IF IT IS BAROQUE, FIX IT 31

provided a fourteen-year renewal provision.

Nearly a century later, the Copyright Act

of 1909 (1909 Act) again changed the renewal term.

While the 1909 Act kept the

initial copyright term of twenty-eight years unchanged from the 1831 Act, it extended

the renewal term to twenty-eight years.

The Copyright Act of 1976 (1976 Act) was the last major statutory revision to

Under the 1976 Act, the copyright term

increased to the author’s life plus fifty years.

For anonymous works, pseudonymous

works, and works made for hire, the term became seventy-five years from the first

publication date or 100 years from the year of its creation, whichever expires first, or

the life of the author plus fifty years.

The renewal lengths were again increased

through the Sonny Bono Copyright Term Extension Act of 1998 (CTEA).

The CTEA

dictates the current terms—the author’s life plus seventy years, or if the work is by a

corporate, anonymous, pseudonymous author or made for hire, the copyright length is

120 years after creation or ninety-five years after publication, whichever occurs

earlier.

In other words, any work created this year is protected for the author’s

lifetime plus seventy years.

For anonymous works, pseudonymous works, or works

made for hire, the term is ninety-five years from the first publication date or 120 years

from the year of its creation, whichever occurs first.

Like the copyright term, the substance and subject matter of copyright protection

has expanded.

The 1790 Act only included maps, charts, and books as copyrightable

material.

Musical compositions did not fit within these categories and therefore did

not have explicit protection under the first copyright act.

The first musical

composition and sheet music was registered in 1794 as a book.

Through the 1831

Act, musical compositions became statutorily protected under copyright law.

This

protection originally applied only to printed sheet music.

59. Id. § 2.

60. See Copyright Act of 1909, ch. 320, § 23, 35 Stat. 1075, 1080 (repealed 1976).

61. Id.

62. See Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541, 2598 (codified as amended in

scattered sections of the U.S. Code).

63. See id. sec. 101, § 302(a), 90 Stat. at 2572.

64. See id. sec. 101, § 302(c), 90 Stat. at 2572–73.

65. See Sonny Bono Copyright Term Extension Act of 1998, Pub. L. No. 105-298, § 102(b)–(d), 112

Stat. 2827, 2827 (codified at 17 U.S.C. §§ 302–04 (2018)).

66. 17 U.S.C. § 302(a)–(c).

67. See id. § 302(a).

68. See id. § 302(c).

69. See WILLIAM M. LANDES & RICHARD A. POSNER, THE POLITICAL ECONOMY OF INTELLECTUAL

PROPERTY LAW 2–3 (2004) (showing the increase in the number of words in copyright statutes over time as a

measure of expansion of rights).

70. Copyright Act of 1790, ch. 16, § 1, 1 Stat. 124, 124.

71. See William F. Patry, COPYRIGHT LAW & PRACTICE n.91 (1994) (ebook), http://digital-law-

online.info/patry/patry5.html [https://perma.cc/T4C6-GESM].

72. See FEDERAL COPYRIGHT RECORDS 1790–1800, at 15 (James Gilreath ed., 1987) (listing “The

Kentucky Volunteer a new Song” as the fifty-second entry).

73. Copyright Act of 1831, ch. 16, § 1, 4 Stat. 436, 436 (repealed 1870).

74. See id.

32 TEMPLE LAW REVIEW ONLINE [Vol. 92

Nonprinted music gradually earned copyright protection. Venues that played

music did not have to compensate composers for the performance of their musical

works until 1917 after Herbert v. Shanley Co.

Justice Holmes, writing for the Court,

noted that “[i]f the rights under the copyright are infringed only by a performance

where money is taken at the door, they are very imperfectly protected.”

The Court

further noted that, while the patrons of the businesses are not there solely for the music,

music is a part of the whole experience and that the presence of music contributes to

the overall profit.

Herbert thus held that places of business that also host musical

performances, such as hotels and restaurants, must compensate composers, even if the

venue is not separately charging guests to listen to the music.

Section 101 of the 1976 Act enacted Section 102(a) of Title 17 of the United

States Code, the current law that applies to sheet music.

Section 102(a) provides a list

of subject matter that can receive copyright protection.

It includes “(1) literary works;

(2) musical works, including any accompanying words; (3) dramatic works, including

any accompanying music; (4) pantomimes and choreographic works; (5) pictorial,

graphic, and sculptural works; (6) motion pictures and other audiovisual works;

(7) sound recordings; and (8) architectural works.”

B. Copyrighting Sheet Music

Sheet music refers to handwritten or printed music that expresses music

notation.

A fundamental feature of Western classical music, sheet music functions by

recording expression through a standard form of symbolic notation of pitches and

sound.

Its inherent adaptability has allowed it to transcend different musical styles

and instruments over time.

Although this is a gross simplification, a notation

instructing a musician to play an F♯ (F-sharp) would mean the same thing to an oboist

as it would to a violinist. That remains true for an oboist and violinist in 1719 and in

2019. As a result of this consistency, Western music notation provides a standardized

and established vehicle of creative expression that has withstood time.

For example,

Monteverdi, a prominent Renaissance and Baroque composer of the sixteenth and

seventeenth centuries,

would be able to read and interpret a piece of music written by

75. 242 U.S. 591 (1917).

76. Herbert, 242 U.S. at 594.

77. Id. at 594–95.

78. See id.

79. See 17 U.S.C. § 102(a)(2) (2018).

80. Id. § 102(a).

81. Id.

82. Nicholas Tawa, Sheet Music, OXFORD MUSIC ONLINE: GROVE MUSIC ONLINE (Jan. 31, 2014),

http://doi.org/10.1093/gmo/9781561592630.article.A2257275 [https://perma.cc/WK53-BH7U].

83. Charles Cronin, Virtual Music Scores, Copyright and the Promotion of a Marginalized Technology,

28 COLUM. J.L. & ARTS 1, 13 (2004).

84. Id.

85. See id.

86. Claudio Monteverdi, NPR ONLINE, http://www.npr.org/programs/specials/milestones/

990519.motm.monteverdi.html [https://perma.cc/76Q9-A49F] (last visited Feb. 1, 2020).

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Stravinsky,

a twentieth century composer known for his controversial work, The Rite

of Spring.

Access to sheet music is critical to musicians of all levels—professionals,

amateurs, or students.

Despite the importance of sheet music, musicians have a

difficult time in determining sheet music’s copyright statuses; this complexity has led

scholars to comment that the music industry is a copyright industry rather than a

creative industry.

Hal Leonard LLC, Music Sales Group, and Alfred Publishing

Company dominate the sheet music publishing market for music of all genres.

These

publishers license composers’ music.

Composers may assign nonexclusive

performance rights to one of three performance rights organizations (also known as

music licensing associations): the American Society of Composers, Authors, and

Publishers; Broadcast Music, Inc.; or the Society of European Songwriters and

Composers.

Through this type of agreement, the licensee pays a royalty fee to the

publisher for the printed music, and the publisher pays for the printing and any unsold

inventory.

For performances, licensees pay the performance rights organizations to

perform the licensed music for a specific period of time, and the performance rights

organizations then give fifty percent of the royalties to the composers.

Often,

licensing agreements also include the copyright owner’s name, copyright date, and the

words “[u]sed by permission” to protect the artist.

Including this information

ascertains the true creative owner of the work, although a copyright notice on printed

music is not required for the copyright to be valid.

Because copyright owners have

performance and printing rights,

renting or buying sheet music gives the purchaser

limited rights.

87. Monteverdi would probably find Stravinsky’s work an abomination to music. He would nonetheless

be nonetheless able to objectively understand the written musical notes. Donal Henahan, What, You Never

Learned to Read Music?, N.Y. TIMES (Nov. 30, 1969), http://www.nytimes.com/1969/11/30/archives/what-

you-never-learned-to-read-music-yes-its-music.html [https://perma.cc/49V8-RF9L].

88. See ERIC WALTER WHITE, STRAVINSKY: THE COMPOSER AND HIS WORKS 37 (2d ed. 1979).

89. M. WILLIAM KRASILOVSKY & SIDNEY SHEMEL, THIS BUSINESS OF MUSIC: THE DEFINITIVE GUIDE

TO THE MUSIC INDUSTRY 297 (10th ed. 2007).

90. See PATRIK WIKSTRÖM, THE MUSIC INDUSTRY: MUSIC IN THE CLOUD 17 (2009).

91. See KRASILOVSKY & SHEMEL, supra note 89, at 298.

92. Id.

93. Amanda Scales, Comment, Sola, Perduta, Abbandonata: Are the Copyright Act and Performing

Rights Organizations Killing Classical Music?, 7 VAND. J. ENT. L. & PRAC. 281, 285 (2005).

94. KRASILOVSKY & SHEMEL, supra note 89, at 298.

95. See Scales, supra note 93, at 285.

96. KRASILOVSKY & SHEMEL, supra note 89, at 300.

97. Id.

98. See 17 U.S.C. § 106 (2018).

99. See ASCAP Licensing: Frequently Asked Questions, AM. SOC’Y COMPOSERS, AUTHORS, AND

PUBLISHERS, http://www.ascap.com/help/ascap-licensing [https://perma.cc/4CXN-94SA] (last visited Feb. 1,

2020) (“Rental or purchase of sheet music or the purchase of a record does not authorize its public

performance.”).

34 TEMPLE LAW REVIEW ONLINE [Vol. 92

C. The Landscape of Sheet Music Under Copyright and in the Public Domain

Traditionally, under American copyright law, music could only be protected if it

was fixed in music notation; it was not until the second half of the twentieth century

that music recordings received copyright protection.

100

Under the 1909 Act, an original

musical work could not be registered unless it was filed in standard music notation,

which meant that the statute did not protect sound recordings.

101

In practice, certain

types of music, like jazz, which depended heavily on improvisation and individualized

performances, effectively could not be copyrighted.

102

It was not until 1976 that

Congress amended the copyright statute to give copyright protection to music that was

exclusively captured by recording rather than sheet music.

103

The 1976 Act gives scant guidance on what constitutes an original piece of sheet

music, and a dearth of case law exists to indicate what deserves copyright protection.

104

In Woods v. Bourne Co.,

105

the Second Circuit held that for music to be copyrighted,

there must be “deliberate aesthetic choices” beyond “cocktail pianist variations of the

piece that are standard fare in the music trade by any competent musician.”

106

contrast, other courts have held that adding fingerings, dynamics, and other musical

markings on a public domain work are original enough for copyright protection.

107

Thus, it is possible for music publishers to add embellishments to public domain works

and still claim copyright protection for those derivative works.

108

Music is comprised

of many elements, and copyrights protect only some combinations of those elements.

109

Therefore, determining what suffices to sustain a music infringement lawsuit is

difficult.

110

Moreover, even prior to the Supreme Court’s decision in Golan,

111

the law

did not clearly identify which works by the author were considered public domain.

Music publishers preyed upon this uncertainty to create “trivially different

arrangements of public domain music.”

112

100. See Cronin, supra note 83, at 14.

101. Id.

102. Id. at 10–11, 14.

103. See 17 U.S.C. § 102(a)(7) (“Works of authorship include . . . sound recordings.”); see also Cronin,

supra note 83, at 14–15.

104. See Paul J. Heald, Reviving the Rhetoric of the Public Interest: Choir Directors, Copy Machines,

and New Arrangements of Public Domain Music, 46 DUKE L.J. 241, 252–54 (1996).

105. 60 F.3d 978 (2d Cir. 1995).

106. Woods, 60 F.3d at 991–92 (quoting Woods v. Bourne Co., 841 F. Supp. 118, 121 (S.D.N.Y.

1994)).

107. See, e.g., Consol. Music Publishers, Inc. v. Ashley Publ’ns, Inc., 197 F. Supp. 17, 17–18 (S.D.N.Y.

1961).

108. See Heald, supra note 104, at 243–44.

109. Williams v. Gaye, 895 F.3d 1106, 1120 (9th Cir. 2018) (“[A]s we have observed previously,

‘[m]usic . . . is not capable of ready classification into only five or six constituent elements,’ but is instead

‘comprised of a large array of elements, some combination of which is protectable by copyright.’” (quoting

Swirsky v. Carey, 376 F.3d 841, 849 (9th Cir. 2004))).

110. See, e.g., id.

111. See infra Part IV.A for a more detailed discussion of Golan.

112. Heald, supra note 104, at 245.

2020] IF IT IS BAROQUE, FIX IT 35

1. Sheet Music and Copyrights for Different Editions

Analyzing various editions of Beethoven’s Sonata no. 31, op. 110 illustrates how

113

Beethoven straddled the

Classical and Romantic musical eras and became more experimental towards the end of

his life.

114

These markings and notations are particularly interesting when looking at

different publishers’ edits.

Figure 1, provided below, is one of the earliest editions of the sonata.

115

In the

second measure after Adagio ma non troppo (slowly, but not too much), there is no

marking to indicate how loudly or softly the performer should play. The words Arioso

dolente (lyrical, sorrowful) are also not accompanied by any other instructions.

IGURE 1

In Figure 2, a later version of the Sonata edited by Johannes Brahms in 1862,

116

the second measure includes the dynamic mark crescendo (a gradual increase in the

loudness of the music).

117

Further, the third measure has the German phrase Klagender

Gesang (plaintive song) on top, which is absent from the previous version.

113. See Piano Sonata No.31, Op.110 (Beethoven, Ludwig van), I

’

USIC

CORE

IBR

ROJECT

http://imslp.org/wiki/Piano_Sonata_No.31,_Op.110_(Beethoven,_Ludwig_van) [https://perma.cc/QVX7-

4F56] (last visited Feb. 1, 2020).

114. See L

EWIS

OCKWOOD

, B

EETHOVEN

USIC AND THE

IFE

385–88 (2003).

115. Johann Cappi, Sonate für das Piano-Forte, Vienna, at 10 (1822). Sheet music accessed at Piano

Sonata No.31, Op.110 (Beethoven, Ludwig van), supra note 113. Beethoven finished composing Piano Sonata

no. 31 in December 1821. L

OCKWOOD

, supra note 114, at 385. Because he completed the sonata in 1821, the

1822 Cappi version is one of the earliest editions of the sonata. See Cappi, supra.

116. Johannes Brahms, Ludwig van Beethovens Werke, Serie 16: Sonaten für das Pianoforte, Nr.154,

Leipzig: Breitkopf und Härtel, at 122 (1862). Sheet music accessed at Piano Sonata No.31, Op.110

(Beethoven, Ludwig van), supra note 113.

117. Crescendo, O

XFORD

ICTIONARY OF

USIC

(Joyce Kennedy et al. eds., 6th ed. 2013) (ebook),

http://www.oxfordreference.com/abstract/10.1093/acref/9780199578108.001.0001/acref-9780199578108-e-

2271?rskey=ozoMcZ&result=2181 [https://perma.cc/6YC8-W9JK].

36 TEMPLE LAW REVIEW ONLINE [Vol. 92

FIGURE 2

In the 1875 Hans von Bülow edition provided in Figure 3,

118

there are markings

for fingerings. Hans von Bülow also adds notes to present further instructions to the

musician.

IGURE 3

This example illustrates the relatively minor variations between different

published editions. Although all of these works are now in the public domain,

119

they

reflect the small changes required for copyright protection, as alluded by Woods.

120

Although not guaranteed, relatively minor changes can be copyrighted.

121

118. Hans von Bülow, Sonate für das Pianoforte von L.van Beethoven. Op.110, Stuttgart: J. G. Cotta, at

108 (1875). Sheet music accessed at Piano Sonata No.31, Op.110 (Beethoven, Ludwig van), supra note 113.

119. Any work created prior to 1925 is in the public domain. See, e.g., H

IRTLE

, supra note 21, at 1–2;

supra note 27.

120. See Woods v. Bourne Co., 60 F.3d 978, 991–92 (2d Cir. 1995); see also supra note 106 and

accompanying text.

121. See id.

2020] IF IT IS BAROQUE, FIX IT 37

2. Sheet Music and the Public Domain

The U.S. public domain has been described as a “vast national park with no

guards to stop wanton looting, with no guides for lost travelers, with no clearly defined

fences or borders to stop the innocent wayfarer from being sued for trespass,” and the

public domain’s material is “tainted by vague and indefinite claims of copyright in

minimal or obscure ‘new versions.’”

122

In other words, instead of the work belonging

to its creator, the work belongs to the public, and anyone can use, distribute, or copy it

with no penalties. For example, in the United States, most versions of Beethoven’s

Piano Sonata in D Minor, op. 31, no. 2 are in the public domain,

123

while nearly all

versions of Prokofiev’s Piano Sonata in D Minor, op. 14 are copyright protected.

124

Because of the intellectual property restrictions imposed on copyrighted works, pieces

in the public domain are generally older.

125

Incomplete public archives also contribute to the uncertain copyright status of

some music.

126

For example, sheet music published in the United States before 1925 is

in the public domain

127

and that the copyright status of all records after 1978 can be

found online.

128

Works published prior to 1925 had a seventy-five-year copyright

protection term, followed by a twenty-year renewal term, so pre-1925 works entered

the public domain in 2020.

129

However, the period from 1925 to 1978 is problematic.

130

This is because the U.S. Copyright Office does not track what works fall within the

public domain for this particular time period.

131

A potential explanation is that the

works between 1925 and 1978 are still governed by the 1909 Act, and the status of

those works are determined through their individual publication dates and respective

122. KRASILOVSKY & SHEMEL, supra note 89, at 126.

123. See supra Section I for a discussion on different versions of sheet music and the different

124. See Piano Sonata No.2, Op.14 (Prokoviev, Sergey), INT’L MUSIC SCORE LIBR. PROJECT,

http://imslp.org/wiki/Piano_Sonata_No.2%2C_Op.14_(Prokofiev%2C_Sergey) [https://perma.cc/8X7U-

JLQK] (last visited Feb. 1, 2020).

125. See, e.g., Paul J. Heald, How Copyright Keeps Works Disappeared, 11 J. EMPIRICAL LEGAL STUD.

829, 830 (2014) (“Shortly after works are created and propertized, they tend to disappear from public view

only to reappear in significantly increased numbers when they fall into the public domain and lose their

owners. For example, more than twice as many new books originally published in the 1890s are for sale by

Amazon than books from the 1950s, despite the fact that many fewer books were published in the 1890s.”

(footnote omitted)).

126. KRASILOVSKY & SHEMEL, supra note 89, at 126.

127. HIRTLE, supra note 21, at 1–2.

128. Copyright Catalog (1978 to Present), U.S. COPYRIGHT OFF., http://cocatalog.loc.gov/cgi-

bin/Pwebrecon.cgi?DB=local&PAGE=First [https://perma.cc/C96G-54MM] (last visited Feb. 1, 2020).

129. See Samantha Cole, Public Domain Day 2020: These 95-Year-Old Works Are Now Free To Use,

VICE (Jan. 2, 2020, 11:04 AM), http://www.vice.com/en_us/article/akwd7b/best-of-public-domain-day-2020

[https://perma.cc/9BPX-CCK8].

130. See U.S. COPYRIGHT OFFICE, CIRCULAR 15A, DURATION OF COPYRIGHT 1 (2011) [hereinafter U.S.

(“The provisions of copyright law dealing with duration are complex. Different standards apply depending on

whether federal statutory copyright protection was secured before or on or after January 1, 1978, the date the

current law—the Copyright Act of 1976—took effect.”); see also supra note 27.

131. KRASILOVSKY & SHEMEL, supra note 89, at 126.

38 TEMPLE LAW REVIEW ONLINE [Vol. 92

renewal dates, if applicable.

132

Depending on the status of renewals, some of the works

may be in the public domain, while others may not.

133

By request, the staff of the

134

but the cost for such a search is $200 per

hour.

135

Further, the search will not explicitly indicate whether something is in the

public domain but instead will provide information for the inquirer to subsequently

determine that for herself.

136

Moreover, even if a printed copy of music does not have a

137

The Copyright Renewal Act of 1992 now allows the Copyright Office to renew

copyrights without the author’s request, so failing to renew does not mean the work

enters the public domain.

138

But the status of renewals also poses additional problems

for musicians who want to ascertain the status of a work that fell out of copyright but

may have since been renewed.

139

The Copyright Office itself acknowledges that

“[a]ccess by composer is limited” for music records from 1898 to 1937.

140

In other

words, it would be difficult to search a copyright status solely through a composer’s

name.

This general lack of guidance promotes a chilling effect

141

: people are afraid to

use works with an uncertain copyright status.

142

This defensiveness is exacerbated by

an assumption that any source after 1925 is under copyright, even though that is not

always true.

143

This general uncertainty leads to disclaimers like the one by the

International Music Score Library Project (IMSLP): “Please obey the copyright laws of

your country. IMSLP does not assume any sort of legal responsibility or liability for the

consequences of downloading files that are not in the public domain in your

country.”

144

IMSLP is virtual library that hosts public domain music scores.

145

For

132. U.S. COPYRIGHT OFFICE, CIRCULAR 15A, supra note 130, at 2.

133. See id.

134. KRASILOVSKY & SHEMEL, supra note 89, at 126.

135. U.S. COPYRIGHT OFFICE, CIRCULAR 4, COPYRIGHT OFFICE FEES 3 (2018),

http://www.copyright.gov/circs/circ04.pdf [https://perma.cc/B7G8-T693].

136. See KRASILOVSKY & SHEMEL, supra note 89, at 127.

137. Id. at 300.

138. Id. at 123.

139. See U.S. COPYRIGHT OFFICE, CIRCULAR 22, HOW TO INVESTIGATE THE COPYRIGHT STATUS OF A

WORK 1–2 (2013), http://www.copyright.gov/circs/circ22.pdf [https://perma.cc/XS7B-2FW9] (noting that a

search of the Copyright Office’s Catalog of Copyright Entries will sometimes “not be sufficient to provide the

needed information”).

140. U.S. COPYRIGHT OFFICE, CIRCULAR 23, THE COPYRIGHT CARD CATALOG AND THE ONLINE FILES

OF THE COPYRIGHT OFFICE 3–4 (2015) [hereinafter U.S. COPYRIGHT OFFICE, CIRCULAR 23],

http://www.copyright.gov/circs/circ23.pdf [https://perma.cc/2QA5-M3V9].

141. See Amicus Brief on Behalf of Project Petrucci, LLC in Support of Petitioners at 11, Golan v.

Holder, 565 U.S. 302 (2012) (No. 10-545), 2011 WL 2578554 [hereinafter Project Petrucci Amicus Brief in

Golan v. Holder].

142. See id. at 9–12.

143. See id. at 11; see also supra note 27.

144. See, e.g., 5 Poems, Op.23 (Prokofiev, Sergey), INT’L MUSICAL SCORE LIBR. PROJECT,

http://imslp.org/wiki/5_Poems,_Op.23_(Prokofiev,_Sergey) [https://perma.cc/4XSH-8BKS] (last visited Feb.

1, 2020).

145. IMSLP: Goals, INT’L MUSICAL SCORE LIBR. PROJECT, http://imslp.org/wiki/IMSLP:Goals

[https://perma.cc/XHS3-FAP4] (last visited Feb. 1, 2020).

2020] IF IT IS BAROQUE, FIX IT 39

some works, such as those by Prokofiev, IMSLP also posts a warning that “[i]t is very

unlikely that this work is public domain in the EU, or in any country where the

(where IMSLP is hosted) and other countries where the term is life-plus-50 years.”

146

However, there is currently no explicit guidance on the use of these works in different

jurisdictions.

147

III. T

HE PLIGHT OF CLASSICAL MUSIC IN THE TWENTY-FIRST CENTURY

The evolution of copyright law in the United States and subsequent developments

in the digital age present unique challenges to classical music and access to sheet

music. This Section begins in Part III.A with a discussion of how the digital age both

promotes and restricts access to sheet music. Part III.B presents a problem about

current copyright records. It concludes in Part III.C with the dismal state of classical

music in the United States and how a Supreme Court case in 2012 compounded the

problem by holding an international copyright scheme constitutional in allowing some

classical music works to be taken out of the public domain.

A. Sheet Music and the Digital Age

The digital age further complicates the challenges that public domain classical

music already faces.

148

Technological advancements have made the public domain

more accessible, but it has not resolved its problems of uncertainty.

149

Consequently,

users of IMSLP may not submit works because of their uncertainty about the works’

150

Moreover, if users want to confidently check the status of the

copyrights of a work produced prior to 1978, they must physically visit the Copyright

Office in Washington, D.C.

151

The comprehensive status of works that were registered

146. See, e.g., 5 Poems, Op.23 (Prokofiev, Sergey), supra note 144. For example, China has a copyright

term of life-plus-fifty years. Zhonghua Renmin Gongheguo Zhuzuoquan Fa, 中华人民共和国著作权法

[Copyright Law of the People’s Republic of China] (promulgated by the Standing Comm. Nat’l People’s

Cong., Sept. 7, 1990, effective June 1, 1991, amended Oct. 27, 2001 & Feb. 26, 2010), art. 21 (“In respect of a

work of a citizen, the term of protection for the right of publication . . . shall be the lifetime of the author and

fifty years after his death, expiring on December 31 of the fiftieth year after his death.”).

147. See lincoln1222, ATTENTION: Everything by Prokofiev Has Been Taken Off of IMSLP, REDDIT

(Mar. 9, 2018), http://www.reddit.com/r/classicalmusic/comments/83catu/attention_everything_by_prokofiev_

has_been_taken/ [https://perma.cc/5JPD-56MU] (highlighting the confusion over various copyright terms and

jurisdictions through a forum discussion when Sergei Prokofiev’s music was removed from IMSLP after

receiving threats of legal action).

148. See, e.g., Daniel J. Wakin, Free Trove of Music Scores on Web Hits Sensitive Copyright Note,

N.Y. TIMES (Feb. 22, 2011), http://www.nytimes.com/2011/02/22/arts/music/22music-imslp.html

[https://perma.cc/AG4P-68VF] [hereinafter Wakin, Free Trove].

149. See Project Petrucci Amicus Brief in Golan v. Holder, supra note 141, at 12, 27.

150. Id. at 11.

151. See U.S. COPYRIGHT OFFICE, CIRCULAR 23, supra note 140, at 1 (“Together, the copyright card

catalog and the online files of the Copyright Office provide an index to copyright registrations and records in

the United States from 1870 to the present. The copyright card catalog contains approximately 45 million cards

covering the period 1870 through 1977. Registrations and records for all works dating from January 1, 1978, to

the present are searchable in the online catalog, available at www.copyright.gov/records.”); see also Jon

Orwant, U.S. Copyright Renewal Records Available for Download, GOOGLE BOOKS SEARCH (June 23, 2008,

40 TEMPLE LAW REVIEW ONLINE [Vol. 92

before 1978 can be found only in the Copyright Public Records Reading Room.

152

This

added barrier may mean that people are not tapping into the full potential of the public

domain to disseminate classical music.

153

Public domain hosting sites like IMSLP also face a constant barrage of legal

battles with the music publishing industry.

154

Music publishers have threatened IMSLP

with requests to remove the public domain sheet music from its site because they pose

a threat to sales.

155

Given the high costs of litigation, public domain ventures face the

difficult calculus that renders compliance with the requests more favorable than facing

the cost burdens of litigation.

156

For instance, in March 2018, IMSLP removed all of its

works by Sergei Prokofiev in response to a legal threat from the Music Sales Group,

one of the main music publishing industry players.

157

In addition, sheet music also faces a unique set of jurisdictional challenges in the

digital age, with works being available online and accessible in some countries

(because they are in the public domain) but not in others.

158

As discussed, it is

especially difficult to determine whether a piece of sheet music is in the public domain

in the United States.

159

Because of the different copyright laws, one piece of music

enters different countries’ public domains at different times.

160

The digital age has transformed the business model for sheet music by allowing

sales to occur over the computer instead of through physical retailers.

161

While large

publishing houses previously dominated the sheet music industry, the internet also

allows individual artists to create and distribute their own sheet music.

162

Still, the print

publishing houses have adapted to the changing landscape through their large online

presence.

163

The same major publishing houses also dominate the online sphere for

sheet music sales.

164

The two biggest websites by volume are Sheet Music Direct and

9:45 AM), http://booksearch.blogspot.com/2008/06/us-copyright-renewal-records-available.html [https://

perma.cc/9NPN-34G8] (noting that Carnegie Mellon University scanned records as part of the Universal

Library Project, but “[t]here are undoubtedly errors in these records,” so the most reliable source is the

physical Copyright Office in Washington, D.C.).

152. Copyright Catalog (1978 to Present), supra note 128.

153. See Project Petrucci Amicus Brief in Golan v. Holder, supra note 141, at 27–28.

154. Wakin, Free Trove, supra note 148.

155. Id.

156. Project Petrucci Amicus Brief in Golan v. Holder, supra note 141, at 17.

157. lincoln1222, supra note 147; see also KRASILOVSKY & SHEMEL, supra note 89, at 298 (discussing

the major publishers in licensing classical music).

158. For example, Canadian copyrights last for the author’s life-plus-fifty years, while the European

Union and the United States adhere to the author’s life-plus-seventy years. See Public Domain, INT’L MUSIC

SCORE LIBR. PROJECT, http://imslp.org/wiki/Public_domain [https://perma.cc/TN3A-WYYM] (last visited Feb.

1, 2020). IMSLP’s main servers are in Canada, which provide a further complication for users around the

world who have different copyright laws. Id. However, those jurisdictional questions are beyond the scope of

this Comment.

159. See KRASILOVSKY & SHEMEL, supra note 89, at 124.

160. Id.; see also supra note 158.

161. KRASILOVSKY & SHEMEL, supra note 89, at 302.

162. Id.

163. See id.

164. Id.

2020] IF IT IS BAROQUE, FIX IT 41

Music Notes.

165

Sheet Music Direct is a joint venture between Hal Leonard and Music

Sales Group.

166

Its business model allows musicians to print sheet music from their

computers but also allows mail-orders.

167

These online retailers can offer a collection

of sheet music that exponentially exceeds what can be offered at brick-and-mortar

wholesalers or retailers because of the space constraints of physical locations.

168

While Sheet Music Direct and Music Notes sell printable music for profit,

platforms that promote the free distribution of music also exist.

169

As previously

mentioned, IMSLP is an online platform that hosts public domain music scores.

170

IMSLP’s collection relies on user submissions and public contributions.

171

As of

February 10, 2020, the website hosts 154,542 works by 18,450 composers and 500,719

scores.

172

IMSLP’s main servers physically reside in Canada.

173

Because of its main

physical server location, IMSLP follows Canadian copyright laws.

174

B. Where’s the Record? It’s Haydn

175

: The U.S. Copyrights Records Database

Step into the shoes of a high school wind ensemble conductor who wants to

perform a Shostakovich piece that is a staple of the wind ensemble repertoire. The

conductor herself performed the piece decades ago. The score is not on IMSLP, nor is

the arrangement available through any online retailers, like Sheet Music Direct. The

conductor’s friend coincidentally owns a copy of the score and the parts from his

college days. Although the friend does not remember exactly where or how the copy

came into his possession, he knows it occurred prior to 2012—relevant because of

Golan. Is this an opportunity to show students this wonderful piece of music that they

may not see elsewhere, or is this a cautionary tale for avoiding copyright

infringement?

176

The scenario above illustrates the difficult choices that musicians face when

selecting repertoire, whether for performance or for other uses. The Copyright Office

has a records repository, but it only applies to works published after 1978.

177

Works

165. See id.

166. Id.

167. Id.

168. Id.

169. See, e.g., INT’L MUSIC SCORE LIBR. PROJECT, http://imslp.org [https://perma.cc/WR2T-3MQ6]

(last visited Feb. 1, 2020).

170. See IMSLP: Goals, supra note 145.

171. See id.

172. INT’L MUSIC SCORE LIBR. PROJECT, supra note 169.

173. Public Domain, supra note 158.

174. Id; see also IMSLP: FAQ, INT’L MUSIC SCORE LIBR. PROJECT, http://imslp.org/wiki/IMSLP:FAQ

[https://perma.cc/X4U7-PTGU] (last visited Feb. 1, 2020) (noting that IMSLP “also [has] a legally unaffiliated

US-located server that can only be contributed to by admins and offers out-of-copyright files in the US only”).

175. Pronounced “high-den.” See Franz Joseph Haydn (1732–1809), CLASSIC FM,

http://www.classicfm.com/composers/haydn/ [https://perma.cc/CBL4-CGZ5] (last visited Feb. 1, 2020).

176. Telephone Interview with A.D., Music Director at a suburban Philadelphia high school (Oct. 29,

2018). The director’s friend faced this dilemma when choosing repertoire for her ensemble and ultimately

chose alternative pieces to perform. Id.

177. Copyright Catalog (1978 to Present), supra note 128.

42 TEMPLE LAW REVIEW ONLINE [Vol. 92

composed prior to 1925 are in the public domain.

178

Because works composed between

1925 to 1978 are governed by the 1909 Act, the exact copyright status of the work

cannot be ascertained through merely knowing when the author died.

179

There are

current efforts to digitize the collection, but those efforts are currently being piloted,

180

and there are no guarantees the pilot will succeed.

The process of ascertaining the copyright status for pieces created between 1925

and 1978 is difficult and must be completed on an individual basis. The status is

determined by when the composer published the work and adding twenty-eight years to

that date.

181

If the composer created the work before January 1, 1964, then the

prospective user must then find whether the Copyright Office renewed that copyright

for another twenty-eight years.

182

If it was not renewed, then the copyright protection

runs out on the date of publication plus twenty-eight years, but if it was renewed, then

the copyright protection runs from the date of publication to the renewal year plus

another twenty-eight years, for a total of fifty-six years from the initial publication.

183

the composer created the work after January 1, 1964, but before December 31, 1977,

the copyright has an automatic renewal for a ninety-five year period.

184

For example, if a musician wants to perform an all-Stravinsky concert, the

musician must determine the publication date of each of the works to be performed as

well as their copyright renewal dates, if applicable. Stravinsky published some of his

most renowned works—The Firebird, for example—prior to 1925,

185

so they are

within the public domain.

186

Other works by Stravinsky, such as The Rake’s Progress,

are not in the public domain.

187

There is no uniform or easy way to determine which of

Stravinsky’s works are within the public domain and which are not because this

requires knowing the original publication date in addition to any potential renewals.

188

In contrast, the U.S. Patent and Trademark Office (USPTO), provides an online

database with records dating back to 1790.

189

Although the search process itself can be

178. E.g., HIRTLE, supra note 21, at 1–2.

179. See U.S. COPYRIGHT OFFICE, CIRCULAR 15A, supra note 130, at 2; see also supra note 27.

180. See, e.g., Project Goals, U.S. COPYRIGHT OFFICE, http://www.copyright.gov/digitization/

goals.html (last visited Feb. 1, 2020).

181. See U.S. COPYRIGHT OFFICE, CIRCULAR 23, supra note 140, at 2.

182. Id.

183. Id.

184. Id.

185. The Firebird (Stravinsky, Igor), INT’L MUSIC SCORE LIBR. PROJECT,

http://imslp.org/wiki/The_Firebird_(Stravinsky,_Igor) [https://perma.cc/A45T-7W6C] (last visited Feb. 1,

2020).

186. See, e.g., HIRTLE, supra note 21, at 1–2.

187. See, e.g., Stravinsky, Igor: The Rake’s Progress (1948–51), BOOSEY & HAWKES,

http://www.boosey.com/pages/opera/moredetails?musicid=4670 [https://perma.cc/6REC-5FF5] (last visited

Feb. 1, 2020) (detailing the 1951 world premiere date and because The Rake’s Progress was first performed in

1951 it will not enter the public domain until 2046 at the earliest—the date it enters the public domain is

determined by its first performance date).

188. See U.S. COPYRIGHT OFFICE, CIRCULAR 15A, supra note 130, at 2.

189. Search for Patents, U.S. PATENT AND TRADEMARK OFF., http://www.uspto.gov/patents-

application-process/search-patents [https://perma.cc/FN8X-3VVA] (last visited Feb. 1, 2020).

2020] IF IT IS BAROQUE, FIX IT 43

arduous, the records are much more comprehensive.

190

All of the records of every

historical patent are digitized,

191

so there is no need to visit a physical location to

ascertain the status of a patent.

Further in contrast, other countries have less ambiguous guidance on copyright

protection. Returning to the Stravinsky’s The Firebird example from above, the

Canada, Japan, and the European Union are examples of other places that determine the

length of copyright protection based on the death date of the author. Canadian and

Japanese copyrights expire fifty years after the composer dies.

192

In other countries, the

time period is seventy years.

193

For all of these countries, knowing the author’s date of

death is enough to ascertain whether something is copyrighted. If someone died in 1949

or earlier, then the work is in the public domain in those countries because it has been

more than seventy years. However, that is not necessarily the case in the United States

because the copyright status is not calculated simply by using one date: works created

before 1978 still follow the 1909 Act while works created in 1978 or later follow the

1976 Act.

C. Funeral March: The State of Classical Music in the United States

Classical music is dying.

194

Public engagement in classical music has steadily

declined in the last few decades, and this dismal trend has continued in recent years.

195

According to the most recent annual National Endowment for the Arts’s Survey for

Public Participation in the Arts, only 8.6% of U.S. adults attended a classical music

performance in 2017.

196

This figure has steadily decreased from eighteen years ago

190. See id.

191. Id.

192. Public Domain, supra note 158.

193. E.g., id. There are many countries that follow the life-plus-seventy years approach, such as the

Czech Republic and Denmark. See, e.g., EUROPEAN PARLIAMENTARY RESEARCH SERV., COPYRIGHT LAW IN

THE EU: SALIENT FEATURES OF COPYRIGHT LAW ACROSS THE EU MEMBER STATES 37, 55 (2018), http://

www.europarl.europa.eu/RegData/etudes/STUD/2018/625126/EPRS_STU(2018)625126_EN.pdf [https://

perma.cc/8RQK-XNMN]; see also PABLO CARDOSO, WORLD INTELLECTUAL PROP. ORG., THE ECONOMIC

CONTRIBUTION OF COPYRIGHT INDUSTRIES IN THE REPUBLIC OF ECUADOR 13, http://www.wipo.int/

export/sites/www/copyright/en/performance/pdf/econ_contribution_cr_ec.pdf (last visited Feb. 1, 2020);

WORLD INTELLECTUAL PROP. ORG., THE ECONOMIC CONTRIBUTION OF COPYRIGHT-BASED INDUSTRIES IN

ARGENTINA 18 (2013), http://www.wipo.int/export/sites/www/copyright/en/performance/pdf/econ_

contribution_cr_ar.pdf [https://perma.cc/ZZ78-R43E].

194. See, e.g., Mark Vanhoenacker, Requiem: Classical Music in America Is Dead, SLATE (Jan. 21,

2014, 11:52 PM), http://slate.com/culture/2014/01/classical-music-sales-decline-is-classical-on-deaths-

door.html [https://perma.cc/4YQM-72SK].

195. See NAT’L ENDOWMENT FOR ARTS, OFFICE OF RESEARCH AND ANALYSIS, U.S. TRENDS IN ARTS

ATTENDANCE AND LITERARY READING: 2002–2017, at 8 (2018) [hereinafter NAT’L ENDOWMENT FOR ARTS,

U.S. TRENDS], http://www.arts.gov/sites/default/files/2017-sppapreviewREV-sept2018.pdf [https://perma.cc/

Z4ER-D5K9].

196. Id. The use of the term “classical music” in this survey refers to symphony, chamber, or choral

music. NAT’L ENDOWMENT FOR ARTS, A DECADE OF ARTS ENGAGEMENT: FINDINGS FROM THE SURVEY OF

PUBLIC PARTICIPATION IN THE ARTS, 2002–2012, at 8 (2015) [NAT’L ENDOWMENT FOR ARTS, A DECADE OF

ARTS ENGAGEMENT], http://www.arts.gov/sites/default/files/2012-sppa-feb2015.pdf [https://perma.cc/PP4D-

3WVL].

44 TEMPLE LAW REVIEW ONLINE [Vol. 92

when it was 11.6%.

197

In other words, in the past eighteen years, there was a 25.9%

decrease in the rate of classical music performance attendance. In contrast, during this

same time period, U.S. adult movie theater attendance has remained mostly

unchanged.

198

In 2017, 58.6% of U.S. adults were moviegoers, which was only a 2.3%

rate decrease from 2002.

199

Predictably, this steady decline in classical music performance attendance has

correlated with poor sales figures in the classical music business.

200

According to

market research firm Nielsen Music’s 2013 music survey, the classical genre

constituted only 2.8% of all albums sold in the United States.

201

By 2017, that number

decreased to 1.9%.

202

In comparison, the R&B/Hip-Hop category made up 14.6% of

total album sales and the Rock category made up 34.6%.

203

These figures demonstrate

classical music’s relative lack of popularity amongst Americans.

Live classical music has also endured difficult times in this same time period.

204

During the past decade, the overall volume of ticket sales for orchestras has declined at

an annual rate of 2.8%.

205

This coincided with many orchestra bankruptcies, most

notably that of one of America’s “Big Five” Orchestras

206

—the Philadelphia

Orchestra.

207

Other orchestra bankruptcies from 2010 to 2011 included the Honolulu

Symphony,

208

New Mexico Symphony,

209

and Syracuse Symphony.

210

These orchestra

bankruptcies did not only occur as a result of the recession; the trend has continued to

197. NAT’L ENDOWMENT FOR ARTS, U.S. TRENDS, supra note 195, at 8.

198. Id. at 6.

199. Compare id., with NAT’L ENDOWMENT FOR ARTS, A DECADE OF ARTS ENGAGEMENT, supra note

196, at 76 (noting that sixty percent of adults saw a movie in 2002).

200. See, e.g., NIELSEN MUSIC, 2017 U.S. MUSIC YEAR-END REPORT 31 (2018) [hereinafter NIELSEN,

2017], http://www.nielsen.com/us/en/insights/reports/2018/2017-music-us-year-end-report.html [https://

perma.cc/88NM-DH7S].

201. NIELSEN MUSIC, U.S. MUSIC INDUSTRY YEAR-END REVIEW: 2013, at 10 (2014),

http://www.nielsen.com/wp-content/uploads/sites/3/2019/04/nielsen-us-music-year-end-report-2013.pdf

[https://perma.cc/UN3L-K5A7].

202. NIELSEN, 2017, supra note 200, at 31.

203. Id.

204. See NAMITA DESAI ET AL., OLIVER WYMAN, REIMAGINING THE ORCHESTRA SUBSCRIPTION MODEL

7, 11 (2015), http://www.oliverwyman.com/content/dam/oliver-wyman/global/en/2015/nov/Reimagining-the-

Orchestra-Subscription-Model-Fall-2015.pdf [https://perma.cc/4TWR-H3PN].

205. Id. at 11.

206. James R. Oestreich, The Big Five Orchestras No Longer Add Up, N.Y. TIMES (June 14, 2013),

http://www.nytimes.com/2013/06/16/arts/music/the-big-five-orchestras-no-longer-add-up.html [https://

perma.cc/X26R-PXFN].

207. See Daniel J. Wakin, Details Emerge of an Orchestra’s Bankruptcy Plea, N.Y. TIMES (Apr. 20,

2011), http://www.nytimes.com/2011/04/21/arts/music/philadelphia-orchestra-papers-give-bankruptcy-

details.html [https://perma.cc/VY4N-797H].

208. Catherine E. Toth, Honolulu Symphony Shutting Down After 110 Years of Music, HAW. MAG.

(Dec. 26, 2010), http://www.hawaiimagazine.com/blogs/hawaii_today/2010/12/16/Honolulu_Symphony_

shutting_down [https://perma.cc/WN8T-ZQ97].

209. Winthrop Quigley, Creative Drive Lets Orchestra Play On, ALBUQUERQUE J. (Aug. 6, 2013, 12:01

AM), http://www.abqjournal.com/242895 [https://perma.cc/NW8W-XWXK].

210. Melinda Johnson, Syracuse Symphony Orchestra Will File for Bankruptcy, Board Announces,

SYRACUSE.COM (Apr. 6, 2011), http://www.syracuse.com/news/index.ssf/2011/04/post_411.html [https://

perma.cc/Q5KJ-ETRN].

2020] IF IT IS BAROQUE, FIX IT 45

more recent years.

211

In 2016, the Boston Classical Orchestra filed for bankruptcy and

cancelled the remainder of its season.

212

These orchestras are creatures of tradition. They mainly perform public domain

classical works.

213

But this limited repertoire selection also correlates with the

significant cost difference between performing a public domain work and a copyrighted

work.

214

In 2011, U.S. orchestras paid an estimated $150 to buy the score and perpetual

performance rights for a symphony in the public domain, compared with $600 per

performance for a copyrighted work.

215

The preference for public domain works consequently translates to fewer

performances of more recent works (those that are not in the public domain). In the

latest edition of the League of American Orchestra’s Orchestra Repertoire Report,

which aggregates data from 3,721 individual performances among fifty-two orchestras,

only one of the top ten most frequently performed works is not from the public

domain.

216

Of the top ten most-performed operas in the United States from 2010 to

2019, which account for a total of 4,603 performances, all were operas from the public

domain.

217

211. See Andrea Shea, 34-Year-Old Boston Classical Orchestra Files for Bankruptcy and Folds,

WBUR: ARTERY (Feb. 11, 2016), http://www.wbur.org/artery/2016/02/11/boston-classical-orchestra-bankrupt

[https://perma.cc/7GKG-5PM2].

212. Id.

213. See Cronin, supra note 83, at 30. See infra notes 216–217 for the top ten most performed

orchestral and operatic works.

214. When Shostakovich’s Symphony no. 1 was in the public domain, it cost $130 to purchase the sheet

music. See Appellants’ Opening Brief in Golan v. Gonzales, supra note 26, at 17. This one-time purchase

would allow unlimited performances. Id. After the work was removed from the public domain, the cost

skyrocketed to $495 to rent the music for a single performance. Id.

215. Parry, supra note 25.

216. The top ten most performed pieces are: (1) Beethoven, Symphony no. 3 in E-flat Major, op. 55,

“Eroica”; (2) Mahler, Symphony no. 1 in D Major; (3) Rachmaninoff, Piano Concerto no. 3 in D Minor, op.

30; (4) Tchaikovsky, Symphony no. 4 in F Minor, op. 36; (5) Mozart, Symphony No. 41 in C Major, K. 551,

“Jupiter”; (6) Prokofiev, Symphony no. 5, op. 100; (7) Rachmaninoff, Piano Concerto no. 2 in C Minor, op.

18; (8) Beethoven, Symphony no. 8 in F Major, op. 93; (9) Beethoven, Symphony no. 5 in C Minor, op. 67;

and (10) Brahms, Violin Concerto in D Major, op. 77. LEAGUE OF AM. ORCHESTRAS, 2011–12 CLASSICAL

SEASON REPERTOIRE 3 (2012), http://americanorchestras.org/images/stories/ORR_1112/ORR12%20

summary%20report_final.pdf [https://perma.cc/ZB65-QYC8]. Of these ten works, only Prokofiev’s Symphony

no. 5 is protected by copyright because it was published in 1944. See Symphony No.5, Op.100 (Prokofiev,

Sergey), INT’L MUSIC SCORE LIBR. PROJECT, http://imslp.org/wiki/Symphony_No.5,_

Op.100_(Prokofiev,_Sergey) [https://perma.cc/GUV3-SUQ9] (last visited Feb. 1, 2020) (“This work is likely

not in the public domain in the US (due to first publication with the required notice after 1923, plus renewal or

‘restoration’ under the GATT/TRIPS amendments) . . . .”).

217. The top ten most performed operas are Puccini’s La Bohème, Bizet’s Carmen, Puccini’s Madama

Butterfly, Verdi’s La Traviata, Rossini’s Il Barbiere di Siviglia, Puccini’s Tosca, Mozart’s Die Zauberflöte,

Mozart’s Le Nozze di Figaro, Mozart’s Don Giovanni, and Verdi’s Rigoletto. Statistics, OPERABASE,

http://www.operabase.com/statistics/en#opera [https://perma.cc/6WEW-NV8Q] (last visited Feb. 1, 2020)

(providing a searchable database of statistics from 2004 until 2019 by work and by composer with search

options by year, type of work, and geography). This data was extracted from Operabase Statistics, an online

repository of opera performances. See Introduction, OPERABASE, http://www.operabase.com/intro/en

[https://perma.cc/Z8K3-TNK2] (last visited Feb. 1, 2020). This search looked at years 2010 to 2019 and was

limited to opera in the United States.

46 TEMPLE LAW REVIEW ONLINE [Vol. 92

1. The United States Gets with the Program

Despite the evolution of copyright law throughout the country’s history, the

United States eschewed participation in international copyright schemes until

recently.

218

In 1886, the Berne Convention for the Protection of Literary and Artistic

Works, the first international agreement on copyright protection, established basic and

general principles for the protection of literary and artistic works across borders.

219

The

Berne Convention stated that works in one Berne member nation must receive equal

protection in another Berne member nation.

220

In other words, member countries’

copyrighted works must receive the same level of copyright protection in all other

Berne member countries.

221

Moreover, this reciprocal protection is automatic and not

conditioned upon any additional requirements.

222

Although the convention provided

robust guidelines for international copyright law, the United States did not join the

Berne Convention until over a century later on March 1, 1989.

223

The United States’ initial reluctance to join international schemes did not stop it

from intensifying its international copyright protection laws in recent decades.

224

After

joining Berne in 1989, there have been additional developments that have increased

225

The United States initially adopted a

“minimalist approach.”

226

This approach refers to the United States making minimal

changes to copyright law and only when it was explicitly required to do so to avoid

conflicts between U.S. and foreign copyright laws.

227

However, this changed in 1994 when the United States joined the World Trade

Organization and signed the Agreement on Trade-Related Aspects of Intellectual

Property Rights (TRIPS).

228

After TRIPS, Congress passed the Uruguay Round

Agreements Act (URAA).

229

One aspect of this copyright law restored copyrights in

218. Jane C. Ginsburg & John M. Kernochan, One Hundred and Two Years Later: The U.S. Joins the

Berne Convention, 13 COLUM.-VLA J.L. & ARTS 1, 1–2 (1988).

219. See Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886),

WORLD INTELL. PROP. ORG., http://www.wipo.int/treaties/en/ip/berne/summary_berne.html [https://perma.cc/

EZP8-4CPG] (last visited Feb. 1, 2020).

220. Id. (referring to the principle of “national treatment”).

221. See id.

222. Id.

223. U.S. COPYRIGHT OFFICE, CIRCULAR 38A, INTERNATIONAL COPYRIGHT RELATIONS OF THE UNITED

STATES 2 (2019), http://copyright.gov/circs/circ38a.pdf [https://perma.cc/7X2H-HYEH]; see also Berne

Convention Implementation Act of 1988, Pub. L. No. 100–568, 102 Stat. 2853, 2853–61 (1988).

224. See Ginsburg & Kernochan, supra note 218, at 1–2.

225. See Dubina, supra note 41, at 978–82 (highlighting major changes in U.S. copyright law since

1989).

226. Id. at 978.

227. H.R. REP. NO. 100-609, at 7 (1988).

228. Dubina, supra note 41, at 979–80. The TRIPS Agreement is Annex 1C of the Marrakesh

Agreement establishing the World Trade Organization. See Agreement on Trade-Related Aspects of

Intellectual Property Rights (TRIPS), Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade

Organization, Annex 1C, 1869 U.N.T.S. 299, https://www.wto.org/english/docs_e/legal_e/27-trips.pdf

[https://perma.cc/73N6-3XCC].

229. See Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809, 4814 (1994) (codified

as amended in scattered sections of the U.S. Code); U.S. COPYRIGHT OFFICE, CIRCULAR 38B, COPYRIGHT

2020] IF IT IS BAROQUE, FIX IT 47

the United States on foreign works if those works were still copyrighted in the other

members of the Berne Convention.

230

If there was a piece of music no longer under

country, the United States would have to adhere to the other country’s copyright

terms.

231

This effectively extended the copyright terms of some works.

232

The URAA

also provided retroactive protections to works that entered the U.S. public domain—but

were protected elsewhere—prior to the United States joining Berne.

233

In other words,

before 1989, there were works that were in the public domain in the United States but

not in other countries. Those works now have protection based on the international

standards rather than the U.S. standards. For example, Prokofiev’s Peter and the Wolf,

which was previously in the public domain in the United States, returned to copyright

protection because of this retroactive copyright protection.

234

Section 514 of the URAA extended copyright protection to works under copyright

protection in their country of origin but lacking the commensurate level of protection in

the United States.

235

There were three reasons that these works did not have copyright

protection in the United States: (1) absence of copyright relations between the country

of origin and the United States when the work was published, (2) lack of subject matter

protection for sound recordings made before 1972, and (3) failure to provide notice of

236

The retroactive copyright

protection through section 514 is especially pertinent to classical music because most

famous classical works were composed outside of the United States.

237

Turning back

the clock on these works particularly impacted musicians because it limited the artistic

choices they could make.

238

Some orchestra conductors had to stop performing the

works that left the public domain because they were too financially burdensome.

239

particular, conductors had to give up twentieth century Russian works like

Shostakovich’s Symphony no. 1 and Prokofiev’s Peter and the Wolf.

RESTORATION UNDER THE URAA 1 (2013) [hereinafter U.S. COPYRIGHT OFFICE, CIRCULAR 38B],

http://www.copyright.gov/circs/circ38b.pdf [https://perma.cc/E3CU-3LCK].

230. U.S. COPYRIGHT OFFICE, CIRCULAR 38B, supra note 229, at 1–2.

231. Uruguay Round Agreements Act § 514, 108 Stat. at 4976–81; see also 17 U.S.C. § 104A (2018).

232. See The Associated Press, Prokofiev and Shostakovich: Public Domain No More, WQXR (Jan. 19,

2012), http://www.wqxr.org/story/182225-prokofiev-and-shostakovich-public-domain-no-more/ [https://

perma.cc/5UTQ-YPZT].

233. Golan v. Holder, 565 U.S. 302, 307 (2012).

234. E.g., Brian Lee Pelanda, Note, Copyright’s “Traditional Contours” and “Bedrock

Principles”: Golan’s Potential to Secure First Amendment Protection over the Public Domain, 31 WHITTIER

L. REV. 547, 551–52 (2010).

235. Uruguay Round Agreements Act § 514, 108 Stat. at 4976–81; Golan, 565 U.S. at 313–14.

236. Golan, 565 U.S. at 314.

237. For example, none of the top ten most-performed works tracked by the American League of

Orchestras are by American composers. See supra note 216. Unsurprisingly, none of the top ten

most-performed operas from 2008 to 2019 are by American composers either. See supra note 217.

238. See Appellants’ Opening Brief in Golan v. Gonzales, supra note 26, at 16–17.

239. Id. at 17 (“Even orchestras that had already owned the sheet music of some restored works before

section 514 went into effect are stopped from performing these restored works because the performance

license fees creates a burdensome expense smaller orchestras simply cannot absorb.”).

48 TEMPLE LAW REVIEW ONLINE [Vol. 92

2. The Unsuccessful Attempt To Challenge Section 514: Golan v. Holder

In 2012, orchestra conductors, musicians, and publishers challenged section 514

of the URAA.

240

The petitioners in Golan argued that section 514 was unconstitutional

because the provisions violate the “limited time” phrase within the Copyright Clause of

the U.S. Constitution.

241

In a six to two decision, the Supreme Court held that section

514 of the URAA was constitutional.

242

Justice Ginsburg, writing for the majority,

reasoned that the Copyright Clause “does not exclude application of copyright

protection to works in the public domain.”

243

Comments made during a law review

symposium that Justice Ginsburg’s daughter moderated seemed to inspire Justice

Ginsburg’s reasoning.

244

The symposium comments noted that the Copyright Clause

does not textually define “limited time” as a single period of time nor does it textually

dictate whether things could be taken out of the public domain.

245

Furthermore, the lack

of this textual limitation could be consistent with promoting science and art because it

could help publish more works and increase access.

246

The majority in Golan employs

the same reasoning that the Copyright Clause’s aim to promote the sciences is not

limited to incentivizing creation of new works but also to disseminating works and

ideas.

247

Therefore, the international copyright system promoted by section 514 aligns

with the Copyright Clause’s objective to help disseminate works.

248

Justice Breyer wrote a dissenting opinion in which he noted that the URAA

discourages people from producing new works.

249

He wrote that “[b]y definition, it

bestows monetary rewards only on owners of old works—works that have already been

created and already are in the American public domain.”

250

Golan effectively removed some works from the public domain and put them

under copyright protection based on a reciprocity principle.

251

Consequently, many

works, such as those by twentieth century Russian classical composers like Sergei

Prokofiev and Dmitri Shostakovich, were no longer as accessible as they had

previously been, nor could their copyright status be as easily ascertained.

252

In one of

the amicus briefs arguing that section 514 was unconstitutional, Project Petrucci, the

owner of IMSLP, foreshadowed that this would limit the types of classical music

240. Golan, 565 U.S. at 307–08.

241. Id. at 318.

242. Id. at 308.

243. Id. at 318.

244. See id. (citing Symposium, Congressional Power and Limitations Inherent in the Copyright

Clause, 30 COLUM. J.L. & ARTS 259, 266 (2007)).

245. Symposium, supra note 244, at 266.

246. Id.

247. Golan, 565 U.S. at 325–26.

248. Id. at 326–27.

249. Id. at 345 (Breyer, J., dissenting).

250. Id.

251. See id. at 308 (majority opinion) (holding section 514 and its restoration of U.S. copyright

protection to certain works copyrighted in Berne member countries as constitutional).

252. Brief of the American Civil Liberties Union as Amicus Curiae in Support of Petitioners at 9–10,

Golan v. Holder, 565 U.S. 302 (2012) (No. 10-545), 2011 WL 2578555.

2020] IF IT IS BAROQUE, FIX IT 49

people can regularly enjoy.

253

Other critics of the Golan decision have stated that “this

kind of amendment to the Copyright Act brings instability and uncertainty to the whole

system. If no boundaries exist, the law itself becomes meaningless.”

254

However, to

comply with section 514 of the URAA, the United States had to retroactively grant

initially joined Berne.

255

In other words, through the URAA, the United States had to

reciprocate copyright protection for works that were copyrighted in other Berne

member countries.

IV. D

ISCUSSION

Despite the prevalence of classical music in all areas of life, from commercials to

popular music, more recently composed classical works face an uncertain future. While

the current state of classical music is dim in general,

256

the plight of many twentieth

century classical composers is even worse. Artistic preferences do contribute to

whether audiences enjoy more modern works.

257

But another causal factor is that

reduced access and uncertainty of the status of some of those works breeds

avoidance.

258

In other words, because people are unsure of whether a particular piece of

music is copyrighted, they tend to be discouraged and avoid that work altogether. If

those pieces are not used more regularly, their loss of exposure becomes cyclical, and

they may fall into obscurity altogether.

This Section begins in Part IV.A with a discussion of how the Golan decision is

consistent with the development of copyright law in U.S. history but leaves in its wake

a problem for accessing certain classical music. It follows in Part IV.B with a

discussion of how financial incentives skew the performance of some works rather than

others. It concludes in Part IV.C by proposing a repository to facilitate access to

perform the work.

A. Golan’s Consistency with the Historical Development of U.S. Copyright Law

The 2012 Golan case has further changed the availability of classical music,

particularly that of twentieth century Russian composers.

259

With some Prokofiev and

253. See Project Petrucci Amicus Brief in Golan v. Holder, supra note 141, at 37 (“Section 514’s

restriction on users fails not only to provide ample alternative channels, but also any guaranteed alternatives

whatsoever.”).

254. Elizabeth Townsend Gard, Copyright Law v. Trade Policy: Understanding the Golan Battle Within

the Tenth Circuit, 34 COLUM. J.L. & ARTS 131, 134 (2011).

255. See Uruguay Round Agreements Act, Pub. L. No. 103-465, § 514, 108 Stat. 4809, 4976–81 (1994)

(codified as amended in scattered sections of the U.S. Code).

256. Vanhoenacker, supra note 194.

257. See Ross, supra note 24; see also Richard Gray, Audiences Hate Modern Classical Music Because

Their Brains Cannot Cope, TELEGRAPH (Feb. 20, 2010), http://www.telegraph.co.uk/news/science/science-

news/7279626/Audiences-hate-modern-classical-music-because-their-brains-cannot-cope.html [https://

perma.cc/YNY4-MFLM].

258. See infra note 274.

259. See generally Project Petrucci Amicus Brief in Golan v. Holder, supra note 141 (explaining the

impact of the URAA on works that were previously in the public domain in the United States).

50 TEMPLE LAW REVIEW ONLINE [Vol. 92

Shostakovich works excluded from the public domain, such as Peter and the Wolf,

260

music educators and orchestras must respond accordingly. The evolution of copyright

law in the United States has created incentives that favor music publishers and

261

The overall effect of the current

the retroactive copyright protection provided by section 514 of the URAA—is reduced

access due to uncertainty.

262

In the aftermath of Golan, this is especially alarming

because many works that were previously accessible are now protected.

263

Given the development of American copyright law since the late 1700s, the Golan

decision was expected and consistent with the trajectory of U.S. copyright law.

264

Over

the last two centuries, revisions to copyright law extended the length of copyright

terms.

265

It is unlikely that this trend will cease. More importantly, however, Golan

ensured that the United States could provide commensurate copyright protection for

foreign authors’ works in the United States.

266

This holding is especially relevant for

classical music because much of the important repertoire comes from outside of the

United States.

267

Therefore, musicians must accept the reality that Peter and the Wolf

will not be available in the public domain until 2036. However, this does not mean that

musicians should give up on demanding the access they deserve to works that are not

under copyright protection.

Although the public domain can be used to share music,

268

Golan adds uncertainty

to works’ copyright statuses.

269

As a result, users may be less likely to use or share (via

IMSLP, for example) certain musical works if doing so risks infringement litigation.

270

Further, for IMSLP, which is the most comprehensive sheet music database available

on the internet, the need to constantly monitor the copyright status of a work occurs not

just for the initial upload; the volunteers who upload the works to IMSLP must also

continually ascertain that these works do not run afoul of any copyright laws or recent

renewals.

271

The limited human capital dedicated to this work, combined with the

260. See, e.g., Baumann, supra note 35.

261. See Project Petrucci Amicus Brief in Golan v. Holder, supra note 141, at 12 (discussing music

publishers who wrongfully attempt to remove works from IMSLP by alleging copyright infringement).

262. See supra Part II.C for a discussion of the copyright status of sheet music and the difficulty of

determining if a piece is in the public domain.

263. See Project Petrucci Amicus Brief in Golan v. Holder, supra note 141, at 11 (writing in 2011 that

IMSLP users must “simply assume that everything after 1923 is still under copyright”).

264. See supra Part II.A for an analysis of the history of U.S. copyright law.

265. See supra Part II.A.2 discussing how the length of copyright terms have continuously increased

throughout history from the initial fourteen years of protection granted by the 1790 Act to life-plus-seventy

years as granted by the CTEA.

266. See Golan v. Holder, 565 U.S. 302, 308 (2012).

267. See INT’L MUSIC SCORE LIBR. PROJECT, supra note 169 (providing examples of how much

classical music stems from outside the United States).

268. See, e.g., id.

269. See Project Petrucci Amicus Brief in Golan v. Holder, supra note 141, at 10–11.

270. See Wakin, Free Trove, supra note 148.

271. Project Petrucci Amicus Brief in Golan v. Holder, supra note 141, at 8, 11 (“While these

individuals [who volunteer to verify public domain status for IMSLP] must always navigate the already

formidable and growing uncertainties of copyright law, Section 514 imposes a new, continuous burden on

2020] IF IT IS BAROQUE, FIX IT 51

arduous task of maintenance, will inevitably lead volunteers to choose works that are

more easily identified as public domain rather than undertaking the onerous task of

tracking down the exact copyright statuses and renewal statuses of works that fall

within the uncertain 1925 to 1978 date range.

272

B. More Tchaikovsky, Less Prokofiev: How Financial Incentives Impact Music

Current copyright laws create financial incentives that promote certain works and

composers at the detriment of others; musicians and orchestra conductors respond to

economic incentives by making creative choices based on cost considerations.

273

For

example, Lawrence Golan, the orchestra conductor and petitioner in Golan, specifically

chooses public domain repertoire for his orchestra.

274

He noted that he had previously

been able to purchase Dmitri Shostakovich’s Symphony no. 1 for $130, a price for

which he could perform the work an infinite amount of times as the owner.

275

Now, the

cost is $495 to rent the music for a one-time performance.

276

From an economic

standpoint, any orchestra conductor with cost limitations would favor something in the

public domain over the Shostakovich work. Especially with the slew of bankruptcies

that have plagued American orchestras in the past decade, most orchestras do not have

the resources to afford the performance of these works.

277

The cost discrepancy of copyrighted and public domain works means that

not. As a result, certain works will enter obscurity while many others are repeatedly

exposed to the public; it is not a coincidence that every major metropolitan orchestra

performs Tchaikovsky’s 1812 Overture every year during Independence Day.

278

In addition to limiting the repertoire choices of musicians, these economic

incentives produce a domino effect. Often, music tastes are acquired over time, and

what was once judged as bad music can become a masterpiece in subsequent

generations.

279

By not making certain pieces available, the public will be delayed in

their appreciation of Shostakovich’s Symphony no. 5 or Aram Khachaturian’s Sabre

Dance. Those works could have gained the same recognition as Beethoven’s

Symphony no. 5, but copyright laws reduce the opportunity to do so.

them to re-verify the copyright status of every work ad infinitum in order to avoid potentially crushing

liability.”).

272. See U.S. COPYRIGHT OFFICE, CIRCULAR 15A, supra note 130, at 2; supra note 27.

273. See Dubina, supra note 41, at 993–96.

274. See Appellants’ Opening Brief in Golan v. Gonzales, supra note 26, at 13–14.

275. Id. at 17.

276. Id.

277. See supra notes 204–212 for a discussion of the difficulties orchestras have faced in the last

decade.

278. See Bennett, supra note 5.

279. See, e.g., Igor Stravinsky’s “The Rite of Spring,” NPR ONLINE, http://www.npr.org/programs/

specials/milestones/991110.motm.riteofspring.html [https://perma.cc/7XVY-MEPR] (last visited Feb. 1, 2020)

(“Despite its inauspicious debut, Stravinsky’s score for ‘The Rite of Spring’ today stands as a magnificent

musical masterpiece of the twentieth century.”); Amar Toor, 100 Years Ago Today, ‘The Rite of Spring’

Incited a Riot in a Paris Theater, VERGE (May 29, 2013, 11:15 AM), http://www.theverge.com/2013/5/29/

4375736/igor-stravinsky-rite-of-spring-100-anniversary-paris-riot [https://perma.cc/PZ96-C8UY].

52 TEMPLE LAW REVIEW ONLINE [Vol. 92

The financial burden of accessing these works will also impact other areas of

society, including educational institutions and major orchestras.

280

These incentives

should focus on the present, not glorifying the past: “We may need incentives for music

to be written tomorrow, but not for music written seventy-five years ago.”

281

C. Too Difficult to Handel,

282

But a Liszt Can Help

283

The public domain serves as an important vehicle to inspire new works.

284

Anyone can record their own version of Chopin’s Étude in C Minor, op. 10, no. 12

because it is in the public domain.

285

However, Chopin’s work provided the inspiration

for a derivative work for the rapper Nas in “A Queens Story.”

286

In this example, Nas’s

work is copyrighted on the basis of its originality in its derivation, and original

derivative works are statutorily protected.

287

The current uncertain copyright status of many works creates barriers for all

musicians to innovate.

288

If someone wants to include a sample of a piece that was

composed prior to 1978, they would have to physically visit the Copyright Office in

Washington, D.C., to look at the most comprehensive and accurate records.

289

Even if

they can access the records, the search options are limited, including the option to

search by composer.

290

The physical barriers make it less likely that someone will

make the effort to search for something and more likely that they will resort to works

that they know are definitively in the public domain.

291

This tendency likely results in

less creativity, which may decrease an overall output of music that incorporates

classical composers.

Because the Supreme Court held in Golan that taking works out of the public

domain is consistent with the Copyright Clause,

292

music educators and orchestras who

want to use works removed from the public domain must find alternatives. One of the

major problems with the current copyright laws for sheet music is lack of

280. Dubina, supra note 41, at 997–98.

281. Heald, supra note 104, at 249.

282. See George Frideric Handel (1685-1759), CLASSIC FM, http://www.classicfm.com/

composers/handel/ [https://perma.cc/HL8Z-KPC5] (last visited Feb. 1, 2020).

283. See Franz Liszt (1811-1886), CLASSIC FM, http://www.classicfm.com/composers/liszt/

[https://perma.cc/NX48-J9Y6] (last visited Feb. 1, 2020).

284. Heald, supra note 104, at 250.

285. KRASILOVSKY & SHEMEL, supra note 89, at 199.

286. See NAS, supra note 9, at 3:29–4:28.

287. See 17 U.S.C. § 103(a) (2018); Heald, supra note 104, at 250. A derivative work is defined as “a

work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization,

fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any

other form in which a work may be recast, transformed, or adapted.” 17 U.S.C. § 101.

288. See supra Part II.C.2 for a discussion of the difficulties in identifying the copyright status of sheet

music.

289. See supra notes 151–153 and accompanying text.

290. See supra note 140 and accompanying text.

291. See supra Part II.C.2.

292. See Golan v. Holder, 565 U.S. 302, 326 (2012).

2020] IF IT IS BAROQUE, FIX IT 53

knowledge—both in terms of notice and in terms of copyright status.

293

The inability to

search by composer to verify copyright status accentuates this problem.

294

There are

commercial resources available that help users determine if something is under

295

However, prospective users must pay for such

types of services.

296

A freely-accessible platform to guide what is protected, and

consequently what constitutes a copyright violation, would benefit musicians and

music publishers alike.

A comprehensive central repository that allows people to search for different

versions and arrangements of classical music, in addition to their respective copyright

dates, would help schools and orchestras be less defensive in selecting repertoire.

297

The International Standard Music Number exists as a way to catalogue music works,

but it is rarely used, and a cursory search for “Prokofiev Romeo and Juliet” on that

database only yielded one arrangement of his popular piece, Romeo and Juliet,

298

which indicates that it is far from complete.

299

A more robust repository, like the one that the USPTO has for patents, would not

only help music educators and orchestras but would also help music publishers check if

anyone is infringing their works. The USPTO repository keeps track of every patent

issued in the United States from 1790, whereas the Copyright Office only has records

from 1978 onwards.

300

For works published between the years 1925 to 1978, the status

of each work has to be ascertained individually.

301

This process creates barriers to

293. See, e.g., About Us, DURATIONATOR, http://www.durationator.com/about [https://perma.cc/UP2R-

PRGJ] (last visited Feb. 1, 2020) (“[T]he determination of a work’s copyright status is more significant than

ever before. Yet oftentimes making such a determination for a given work is a very complicated matter, due in

no small part to the fact that while our cultural activities regularly now are global, copyright law remains based

in country-by-country analyses, sorting laws, histories, agreements, and the like in order to arrive at an

accurate and definitive determination of a work’s copyright status.”).

294. See Copyright Catalog (1978 to Present), supra note 128 (“Works registered prior to 1978 may be

found only in the Copyright Public Records Reading Room.”); supra note 140.

295. See, e.g., DURATIONATOR, http://www.durationator.com [https://perma.cc/AX8F-M8F6] (last

visited Feb. 1, 2020).

296. See, e.g., Products and Pricing, DURATIONATOR, http://www.durationator.com/products-pricing

[https://perma.cc/RTS5-65TE] (last visited Feb. 1, 2020).

297. See Appellants’ Opening Brief in Golan v. Gonzales, supra note 26, at 13 (“Just a few examples

from this case illustrate this fact. Plaintiffs Lawrence Golan, Richard Kapp, and Symphony of the Canyons all

perform music. Their artistic expression is facilitated by the availability of music in the public domain. Indeed

the vast majority of works they perform are public domain works. Without access to the public domain works

which have been ‘restored’ through the URAA their range of performances is significantly restricted.”

(citations omitted)).

298. U.S. ISMN Public Archive, International Standard Music Number Item Records for Music Scores,

LIBR. CONGRESS, http://memory.loc.gov/diglib/ihas/html/ismn/ismn-home.html [https://perma.cc/K5A9-

7GRS] (last visited Feb. 1, 2020) (searching for “Prokofiev Romeo and Juliet” with the only result being “Ten

Pieces from Romeo and Juliet, Op. 75 (2004)”).

299. Although these arrangements are not in the public domain in the United States, IMSLP hosts

various arrangements of the piece, including a piano arrangement to a strings arrangement. Romeo and Juliet

(Ballet), Op.64 (Prokofiev, Sergey), INT’L MUSIC SCORE LIBR. PROJECT, http://imslp.org/wiki/

Romeo_and_Juliet_(ballet),_Op.64_(Prokofiev,_Sergey) [https://perma.cc/4KKU-W2FA] (last visited Feb. 1,

2020).

300. Copyright Catalog (1978 to Present), supra note 128.

301. See supra notes 126–137, 181–188 and accompanying text.

54 TEMPLE LAW REVIEW ONLINE [Vol. 92

access that discourages people from using those works entirely.

302

Analogous

commercial services already exist to prey upon the market need to ascertain copyright

statuses within the fragmented records.

303

Because many people are already using

online platforms like IMSLP to find sheet music,

304

a free and comprehensive

repository can complement the hundreds of thousands of works that are already readily

accessible online for use.

While a repository can help musicians determine a work’s copyright status, the

repository cannot address the high cost of performing copyrighted works, such as some

works by Prokofiev and Shostakovich.

305

Thus, the cost deterrence cannot be

eliminated by this solution. However, by making it possible for musicians to determine

whether a piece is in the public domain, the repository can hopefully alleviate the

current chilling effect that plagues orchestras, musicians, and educators. Although it is

true that works protected by the 1909 Act will completely phase out within the next

century, the country cannot afford to allow those works—which include many

important classical works of the twentieth century—to abscond into obscurity by not

exposing them to the music world.

V. C

ONCLUSION

landscape of classical music in the United States. The Golan decision, albeit consistent

with international schemes and the development of U.S. copyright laws over the last

two centuries, has only added to the confusion. The administration of copyright laws

poses a threat to the musical creativity of the nation. The uncertainty in copyright status

of certain works and different copyright dates for different editions of classical works

dissuades musicians and nonmusicians alike from using certain pieces. This uncertainty

and reduced access to works, especially those of the great twentieth century Russian

composers, like Prokofiev and Shostakovich, artificially suppresses the creativity of

artists of all genres. For works published between 1925 to 1978, there needs to be a

better way of tracking what is copyrighted and what is not. Until then, if Lady Gaga

wants to sample Shostakovich’s Jazz Suite no. 2 in her next hit, she should call her

lawyers first.

302. See supra note 176 for one example of a conductor choosing not to perform a piece because of

uncertainty with respect to its copyright status.

303. See About Us, supra note 293; see also supra notes 295–296 and accompanying text.

304. See INT’L MUSIC SCORE LIBR. PROJECT, supra note 169.

305. See Appellants’ Opening Brief in Golan v. Gonzales, supra note 26, at 17.