Does a symphony need a synch license to distribute a performance video of a public domain piece?

September 11, 2012

Dear Music Lawyer,

I'm helping produce a video for our local youth symphony, and we want to include excerpts from our upcoming performance in the video. The piece to be performed is in the public domain (published prior to 1900), but the score we perform it from is published by Kalmus without any copyright notice.

We've been told that even though there is no copyright on the score or the work we still need to obtain a synchronization license from Kalmus because we used the score they printed. What do you think?

—Larry

Dear Larry,

You might* need a synchronization license if the particular arrangement reflected in the Kalmus score is sufficiently original to qualify for separate copyright protection and the arrangement is still under the term of copyright protection. Since it would be difficult to speculate on how "original" the arrangement is, I will focus my response on the importance of having a copyright notice and whether the arrangement may still be protected by copyright.

Because of the length of the term of copyright protection in the United States (generally, life of the author plus 70 years), many public domain songs still have musical arrangements that are protected by copyright. However, works created under the 1909 U.S. Copyright Act had different formalities for maintaining copyright protection than the 1976 U.S. Copyright Act. As a result, whether the arrangement is still within the term of copyright protect depends largely on what date the arrangement was created.

The lack of a copyright notice on the score might also be relevant because copyright notice was once required as a condition of copyright protection. However, copyright notices are optional for many contemporary published works and arrangements. Specifically, copyright notices are optional for works first published after March 1, 1989. Prior to March 1, 1989, copyright notice was mandatory on all published works or the copyright holder risked losing their copyright protection.

Interestingly, the U.S Copyright Office "does not take a position on whether reprints of works first published with notice before March 1, 1989, that are distributed on or after March 1, 1989, must bear the copyright notice." (See more in Circular 3, U.S. Copyright Office)

*Note: I say "might" because it's possible that the use of excerpts in your video could qualify for fair use depending on how much of the piece was excerpted and how the excerpt(s) were used. To be clear, there is no maximum clip length (e.g., as long as it's less than 30 seconds) that automatically makes a use fair. The "might" comes more from how the piece is used in the video. For example, are you using just enough of the piece to give a flavor of it and you are merely commenting in the video on the piece's structure and/or why the piece was selected for performance? If so, that sounds more like fair use. Still, it's best to discuss the specific circumstances with your lawyer.

—Amy E. Mitchell