I want to use the song "Sergei Rachmaninov : Prelude op. 23 no. 5 in G minor" in a youtube video that I would earn money from. (I plan on using 14.68 seconds of it, the whole piece is 4 minutes 5 seconds long) (It is being used as intro music).
Sergei Rachmaninov died in March 1943 however the version of "Prelude op. 23 no. 5 in G minor" I want to use was by Boris Berezovsky, whom is still alive.
I want to know whether I can use this song without breaching copyright. If I can't use it would I be able to use the original version that was by Rachmaninov?
Intro music for a video
Hi Vagon,
I'm not sure you could have picked a more complicated scenario, encompassing as it does both the composer's and the performer's rights (plus the recording of the performance) and at least three nations and their differing copyright laws!
As you have identified, there are two aspects to this question: the composer's copyright, and the copyright of a performer and a recording of his performance. In both cases it is important to examine whether UK copyright extends to the works concerned, and that in turn involves knowing where the work was made.
Sergei Rachmaninov.
Although he was born in Russia, he emigrated in 1917 and eventually settled in the USA. However he toured extensively in Europe and had a home in Switzerland where he composed a lot of his later work. I don't know where Prelude op. 23 no. 5 was composed, but it almost certainly wasn't in the UK and so we need to examine how UK law treats works made in other countries as far as extending copyright protection to them is concerned. Since the UK, USA and Switzerland are all signatories to the major international treaties on copyright, principally the Berne Convention and the Universal Copyright Convention, UK law extends the same protection to works created in these other states as it does to works created in the UK or by UK citizens abroad.
At the time of Rachmaninov's death the copyright term was 50 years after death in Switzerland, but for the USA the situation is considerably more complicated as at that time a work had to be registered to gain copyright and initially the term lasted only for 28 years from the date of publication, renewable to 56 years, and the author's date of death had no bearing on the matter. This was changed by the 1976 Copyright Act, and in most cases published works which were still in copyright at the time of the 1976 Act were granted an extension in the US until 2048. Fortunately UK law does not allow a term to exceed that which would apply to domestically produced works, and under the UK law at the time Rachmaninov's published work would only attract a maximum term in the UK of 50 years post mortem, that is to say until 1 January 1994. The increase in UK law from 50 to 70 years did not come into force until 1 January 1996 and so in the UK Rachmaninov's work entered the public domain in 1994*.
Boris Berezovsky.
There is somewhat less of a problem here. Berezovsky is still alive and in any case he didn't start performing until comparatively recently (1988 according to Wikipedia). Under both Russian and UK law his performances attract a copyright term of 50 years from the date of the performance and so all are still in copyright. What's more, the actual recordings (known as phonograms in legal jargon of treaties) are also protected separately, again with a fifty year term from the recording date, (although in the UK this is due to increase to 70 years following the EU's Directive 2011/77/EU(pdf)).
Is a 14 second clip a substantial part?
I think that in the light of a number of court decisions, using a 14 second clip of a performance would be considered a substantial part of the original work and so be infringement. On that basis I would avoid using a Berezovsky recording unless you get a licence from MCPS for use on the internet.
* It is fortunate here that Switzerland is not a member of the European Economic Area, as that would have made the UK Regulations which introduced the 70 year term retrospective to 1 July 1995 and have to take account of the term then in force in an EEA state where the work was still protected (See Regualtion16(d)). Switzerland's term had been extended to 70 years in 1992 and so would have prevailed.
I'm not sure you could have picked a more complicated scenario, encompassing as it does both the composer's and the performer's rights (plus the recording of the performance) and at least three nations and their differing copyright laws!
As you have identified, there are two aspects to this question: the composer's copyright, and the copyright of a performer and a recording of his performance. In both cases it is important to examine whether UK copyright extends to the works concerned, and that in turn involves knowing where the work was made.
Sergei Rachmaninov.
Although he was born in Russia, he emigrated in 1917 and eventually settled in the USA. However he toured extensively in Europe and had a home in Switzerland where he composed a lot of his later work. I don't know where Prelude op. 23 no. 5 was composed, but it almost certainly wasn't in the UK and so we need to examine how UK law treats works made in other countries as far as extending copyright protection to them is concerned. Since the UK, USA and Switzerland are all signatories to the major international treaties on copyright, principally the Berne Convention and the Universal Copyright Convention, UK law extends the same protection to works created in these other states as it does to works created in the UK or by UK citizens abroad.
At the time of Rachmaninov's death the copyright term was 50 years after death in Switzerland, but for the USA the situation is considerably more complicated as at that time a work had to be registered to gain copyright and initially the term lasted only for 28 years from the date of publication, renewable to 56 years, and the author's date of death had no bearing on the matter. This was changed by the 1976 Copyright Act, and in most cases published works which were still in copyright at the time of the 1976 Act were granted an extension in the US until 2048. Fortunately UK law does not allow a term to exceed that which would apply to domestically produced works, and under the UK law at the time Rachmaninov's published work would only attract a maximum term in the UK of 50 years post mortem, that is to say until 1 January 1994. The increase in UK law from 50 to 70 years did not come into force until 1 January 1996 and so in the UK Rachmaninov's work entered the public domain in 1994*.
Boris Berezovsky.
There is somewhat less of a problem here. Berezovsky is still alive and in any case he didn't start performing until comparatively recently (1988 according to Wikipedia). Under both Russian and UK law his performances attract a copyright term of 50 years from the date of the performance and so all are still in copyright. What's more, the actual recordings (known as phonograms in legal jargon of treaties) are also protected separately, again with a fifty year term from the recording date, (although in the UK this is due to increase to 70 years following the EU's Directive 2011/77/EU(pdf)).
Is a 14 second clip a substantial part?
I think that in the light of a number of court decisions, using a 14 second clip of a performance would be considered a substantial part of the original work and so be infringement. On that basis I would avoid using a Berezovsky recording unless you get a licence from MCPS for use on the internet.
* It is fortunate here that Switzerland is not a member of the European Economic Area, as that would have made the UK Regulations which introduced the 70 year term retrospective to 1 July 1995 and have to take account of the term then in force in an EEA state where the work was still protected (See Regualtion16(d)). Switzerland's term had been extended to 70 years in 1992 and so would have prevailed.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007