2

This is a follow-on to How can I determine what elements of a work are covered by a copyright mark? which dealt with sheet music for public domain compositions that, nevertheless, claimed copyright protection. The current answer points out that editorial decisions and modifications to a public domain work are certainly subject to copyright, but intriguingly suggests, "Even the layout and typography or engraving are subject to copyright...."

If all "layout and typography" are subject to copyright then any writing or printing of otherwise public domain content is protected. But it seems unlikely that the "threshold of originality" can be surmounted so trivially. (Answers to related question Copyright status of restored works indicate that mere "restoration" is only afforded protection in countries that follow a "Sweat of the brow" rule.)

So, disregarding essential creative content like words or notes that we normally consider as subject to copyright (and which can pass into the public domain long before interest in a classical work fades): What visual elements of a printed work are eligible for copyright protection?

Consideration of the following examples might illuminate the question, but need not be explicitly addressed in an answer.

  1. If I hand-write a verse of Shakespeare, can I claim copyright on my manuscript because my handwriting is original?

  2. If I type a chapter of the King James Bible can I claim copyright on my pages because of where I decided to put carriage returns or tab stops?

  3. Can I claim copyright in my transcript of John Locke because of my "original" selection of font, pitch, and typographical layout?

  4. If, as suggested above, I transcribe a composer's original score, is my transcription protected without satisfying any other creative criteria? If not, what criteria suffice?

    • If I make it more legible and alter the layout simply because I use computerized notation software? (This would seem to be analogous to using a word processor to transcribe words written or printed more than a century ago.)

    • If in some place I use a different but musically equivalent notation? (This could be considered analogous to using a more modern spelling, or writing "e.g." instead of "exempli gratia.")

    • If I make changes that are literally different but practically insignificant – e.g., where the composer wrote "Lento" I write "Adagio?" (One might equate this to substituting synonyms for some words in an essay.)

    • If I make changes that qualify as corrections? (In the writing analog, I correct typographical or grammatical errors.)

    • If I add or modify notation that is musically significant – e.g., slurs or ornaments?

    • If I annotate musical dynamics – which may have been implied and even widely understood among modern performers – not found explicitly in the original score? (E.g., forte, crescendo, ritardando, staccato.)

    • If I annotate fingerings or bowing instructions, which when significant are generally obvious to an experienced musician but which can be helpful to a less skilled player?

feetwet
  • 21,795
  • 12
  • 80
  • 175
  • 1
    Does this answer your question? Where to draw the line when it comes to data Copyright law –  Jan 28 '20 at 04:40
  • @Nij that question does not seem to address, for example, whether a hand-written selection of public domain text is protected by copyright. – phoog Jan 28 '20 at 05:46
  • 1
    I mentioned layout and typography because sheet music can be more or less difficult to read because of those things, and because fashion and standards have changed over time. If someone spends time laying out an edition of sheet music (or indeed a book) with consideration for factors that make it easier to read, that is a creative endeavor, the product of which is subject to copyright protection. Therefore, making a photocopy (for example) is infringement. But making a copy by hand or through another mechanism that does not reproduce layout or typography would not be. – phoog Jan 28 '20 at 06:01
  • Indeed, because it's a completely different question about copyright, though one an. At best this is a duplicate of several things, but really should just be closed as needing more focus. –  Jan 28 '20 at 06:01
  • Nij: I can see how the text of the question can be criticized as "too broad," but it is all in service of illustrating the headline question. So, for example, @phoog's comment above would be a helpful and sufficient answer even though it doesn't delve into the elaborations I offer. – feetwet Jan 28 '20 at 07:06
  • Your many questions cannot be practically answered without you defining the jurisdiction that you are asking about. Furthermore, the number of questions make it difficult to address every issue in the normal context of an answer in this venue. – mongo Jan 28 '20 at 14:37
  • @mongo I just revised the post to make it clear that it is really just one question. As with many questions here, answers from any jurisdiction are welcome and helpful. Fortunately modern copyright law is largely informed by international customs like the Berne Convention, so an answer from one jurisdiction is likely to apply to most. – feetwet Jan 28 '20 at 16:51
  • @feetwet, with all due respect I disagree with your simplified characterization. Within Europe alone the treatment of many issues is different. For example, the rights of the artist with respect to how the work was commissioned are radically different in France than in England. Differences such as this create different interpretation possibilities as one evaluates the protections afforded a re-presented public domain document into a different font, page layout, etc. – mongo Jan 28 '20 at 17:18

1 Answers1

2

Maybe

Copyright subsists in "original works"; this leads to the concept of the Threshold of Originality. The case law is long and varied both by time and jurisdiction.

  1. If I hand-write a verse of Shakespeare, can I claim copyright on my manuscript because my handwriting is original?

In the UK in the early-20th century, yes; Walter v Lane is on point here. However, US courts explicitly rejected the "sweat of the brow" doctrine in that decision so not in the US at any time and this would not appear to be good law in the UK today but it hasn't specifically been overturned.

This assumes that the alleged infringement is a copy of the literary work in the text. However, if your penmanship is such that the work meets the threshold for an original artistic work then a copy of that would be infringing.

  1. If I type a chapter of the King James Bible can I claim copyright on my pages because of where I decided to put carriage returns or tab stops?

In most jurisdictions, this would not appear to meet the threshold of originality.

However, if you were to go further and provide footnotes or commentary then these would be copyrighted (obviously) and the specific juxtaposition of these with the original text would also be protected.

  1. If, as suggested above, I transcribe a composer's original score, is my transcription protected ...

They would have to be assessed on a case by case basis. This would include the significance of the changes in both extent and substance, so, as a first blush approximation: no (this is just a transcription), no (this is just a translation), no (ditto), probably (in music at least - is it an "error" or was it composer intent?), yes, yes (even if you are merging to original works into one, your choices are original) and yes.

Dale M
  • 208,266
  • 17
  • 237
  • 460
  • Excellent answer – especially the expert "opinion" at the end addressing the trickier examples informing the original question. Regarding the one "probably:" regardless of compose intent, if I, say, change a note for whatever reason then isn't that change copyrightable? Or is this sort of "derivative" creation subject to some judgment of "extent and substance?" (In the literary analog: must the number of typographical corrections be considered "substantial" to qualify for copyright protection?) – feetwet Jan 28 '20 at 07:02
  • @feetwet: An important principle of copyright law is that ideas can't be copyrighted. If giving a piece of public domain sheet music to a bunch of competent music editors or arrangers, and suggesting an idea for a change would result in many of them producing similar results, that would imply that the "expressions" of the idea that many of them would have produced would be insufficiently original to merit protection. The idea-vs-expression boundary is sometimes unclear, and I think the Constitution was intended to offer some protection to some kinds of "sweat-of-brow" works. If e.g... – supercat Aug 22 '22 at 20:09
  • ...someone were to measure the physical properties of a bunch of materials and catalog them, would think that should represent a "writing" or "discovery" worthy of some form of exclusivity, at least unless or until someone else repeated the measurements in which case the portions common to both tables would cease to be protected. Giving the first person to perform such experiments a short-term monopoly on the results would encourage such experimentation, while allowing people who didn't want to pay to use those results to repeat the experiments themselves would encourage confirmation. – supercat Aug 22 '22 at 20:12