It’s been too long since I made a proper post – I’ve been busy putting together a piece I’m calling An Empirical Study of 225 Years of American Copyright Registrations (title subject to change, natch), which I fully expect to be the bees knees, all while being no bigger than a breadbox. But there’s still a lot I want to share, and this seems as good a time as any to share a report the US Copyright Office issued in 1947 which has been almost completely forgotten.
Until 1947, the US Copyright Office would not register editions of public-domain music for copyright. Obviously the music could not be reinserted to copyright protection, but the Office held that merely editing public-domain music was insufficient for copyright protection. However, in that year the Office issued a report (link to my scans) that gave the history of Office rules for registration of music, and an argument for how they should be changed to include edited versions of public-domain works. The Office changed its position based on this report and allowed such editions of music to be registered for copyright. The Office had distributed the report to interested outside parties, and copies are available at a number of law libraries, but I haven’t seen it online.
The issue of whether editions of public domain music are nonetheless protected was litigated in England in the Hyperion Records case, involving a small classical music label in a suit by a scholar over his editions of the music of an early 18th century composer. However, I think the discussions in the report are illuminating for discussing the scope of music copyright protection and infringement more generally, something Joe Fischman also discusses in his upcoming article Music as a Matter of Law, and I of course discuss in my upcoming article Common-Law Copyright (never miss an opportunity to plug one’s own work).