Advice on "public domain" please

[number6]

Hi there. I want to use an original recording of "By the Light of the Silvery Moon" (published in the US in 1908) in a movie.

I understand that the copyright expires under UK law 70 years after the death of the composer (or co-composer), which is 1952 (and therefore 1st Jan 2023). However, if the authors were both US citizens, then doesn't this become the case:

From Wikipedia:

"Notwithstanding that a work qualifies for copyright protection in the UK, it will not be automatically entitled to the normal period of copyright (as set out above). It may be entitled to only a shorter period of protection.

Where the author is not British (by nationality or domicile), and the work was first published outside the United Kingdom (and not published in the UK within 30 days thereafter), the period of copyright protection provided by UK law is limited to that provided by the laws of the "country of origin" of the work."

So, if the work is in the public domain in the US...doesn't that mean it is also the case in the UK?

It's a minefield! Thanks.

[AndyJ]

Hi Number6 (I assume you are not a number...)

The first thing we need to clarify is that copyright in the song (that is the lyrics and the music) is separate from the copyright in the recording of that song, and each will be owned by different people. You say you want to use an original recording of the song. I assume it is on a shellac disc or wax cylinder! If you have a digital version then that is not the 'original' recording, but a digital copy of it. That adds a bit of complication.

But let's look at the query you actually raised. As you know the music for the song was composed by Gus Edwards (18 August 1878 – 7 November 1945, and the lyrics by Edward Madden (July 17, 1878 – March 11, 1952). As you also know, both were American citizens and By The Light of the Silvery Moon was written and first published in the USA. That means that the copyright term is based on the US law applicable at that time. This involved certain formalities such as registering the work with the US Copyright Office and making sure that copies of the work had a copyright notice on them. Fortunately we don't need to get into the details of that as when the US copyright regime was changed in 1976 to conform with international rules on copyright, all works made and published in the USA before 1926* were automatically declared to be out of copyrght. That is why the sources told you the song was in the public domain.

UK law recognises foreign copyright only to the extent that it would apply in the country of origin (see section 12 (6) of the Copyright Designs and Patents Act 1988) So the original words and music are also no longer protected in the UK as well.

But to return to the recording of the song. Wikipedia notes that there have been many recordings of the song over the past 112 years. As with the song, any recordings made before 1926* are out of copyright in the USA. Recordings made between 1 Jan 1926 and 1 Mar 1989 fall into an exceptionally complicated category, which you can find explained if you scroll about half way down this document produced by Cornell University Library. Protection in the UK for any American-produced recording is governed by section 13A(4) CDPA, which has similar wording to Section 12(6) mentioned earlier. Even if UK copyright did apply (perhaps because the particular recording although made in the USA was actually first released in the UK), then copyright in it lasts for 70 years from the end of the year in which the recording was released (ie published). The copyright in the recording of a song is owned by the record's producer (usually meaning the record company). So ideally you need to have access to a recording made before 1926 to be 100% sure that there is no longer any US copyright on that recording. Under UK law a recording made anywhere in the world will only be protected if it was published on or after 1 Jan 1951. If you intend using a digital recording made from one of those early recordings (scratches and hisses etc) then check to see what copyright, if any, is being claimed by the person who made the digital recording.




*The reason it is currently 1926 is that the 1976 US Copyright Act provided that all published works made prior to when the Act came into force were to be protected for a maximum period of 95 years: 2021 - 95 = 1926). The date 'new' works come into the public domain rolls forward one year each 1st January.

[number6]

Thank you so much for that Andy.
I'm an idiot. I meant to say "a new recording of..."
Presumably that means that you have answered my question?
I've produced a new recording of the 1908 song, so I'm in the clear anywhere that has the same "country of origin" rule, but not in countries with an automatic 70 year rule regardless of origin (until Jan 1st 2023, as Edward Madden died in March 1952). Is that correct?

Many thanks!

[AndyJ]

... I'm in the clear anywhere that has the same "country of origin" rule, but not in countries with an automatic 70 year rule regardless of origin (until Jan 1st 2023, as Edward Madden died in March 1952). Is that correct?

Hi number6,

Very few countries will apply the lifetime plus 70 years rule when the country of origin has a shorter term. The international rules on this are set out in the Berne Convention. Article 5 (4) of the Convention says this:

(4)The country of origin shall be considered to be:
(a) in the case of works first published in a country of the Union[*], that country; in the case of works published simultaneously in several countries of the Union which grant different terms of protection, the country whose legislation grants the shortest term of protection ...

This is reinforced by Article 7 (8):

(8) In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work.

The only major deviation from this occurs within the EU where the law says that all EU countries must apply the term which their own domestic legislation provides, to works which originated in other EU member states. Today all EU members apply the lifetime plus 70 years term, but prior to 1995, some had a lifetime plus 50 years term and others had either a lifetime plus 70 or even 80 years rule.



* Union here means the countries which have signed up to the Berne Converntion. There are 179 signatories. Those which have not signed up are relatively insignificant and are unlikely to cause you any problems over this issue.

[number6]

Thanks again.

That's slightly odd then. I uploaded my movie to a private link on YouTube and got a copyright warning from "Polaris Hub AB" claiming copyright in Brazil, Iceland, Finland and The Philippines.

From their website:
"The Polaris Hub has the authority to license the rights of Koda, Teosto and TONO, and may also include STEF (the Composers Rights Society of Iceland), to multi-territorial online music services across Europe and beyond.

It also licences the international rights managed by these societies in Norway, Denmark, Finland, and potentially Iceland. The Polaris Hub offers a standard license and rates package for the repertoire it represents, and will be the point of contact for the licensing, administration, and processing of these rights."

Are they wrong, do you think?

[AndyJ]

Hi number6,

Yes something is definitely wrong with that. I imagine they are claiming the rights in a recent recording of the song. Since the underlying words and music are no longer in copyright, your version does not infringe another recent recording, however the contentID system on Youtube wouldn't be able to recognise the difference. You need to issue a counter notice which explains that your version is of a public domain work. Bear in mind that, ultimately, it's not Youtube who will decide the issue, it's Polaris Hub, who must then withdraw their claim, unless they can substantiate it. Up to now only an algorithm has been involved in spotting what it thinks is an infringement.

[number6]

Great. Many thanks.

The claim is apparently for the use of the "melody".

[number6]

Ahhhh....I think I have the answer.

The claim is for "By the Light of the Silvery Moon/That's My Desire (medley)"

...so presumably they own the rights to That's My Desire and the algorithm is flagging up Silvery Moon in error.

I'll have a look in the movies forum, but maybe you can also answer this as you're here and have been so helpful

Would the Berne convention also apply to Night of the Living Dead (1968 movie), which has always been public domain in the US? I'm pretty sure it does but some reassurance would be great

[AndyJ]

Hi again number6,

Just a word about the Berne Convention. It is an international treaty which each signatory country needs to incorporate into their own domestic law in order for it to take effect, and there is some latitude for them so long as they apply the basic minimum standards.. So for instance in Article 7 (8) you will find the phrase "unless the legislation of that country otherwise provides". In other words signatory countries may mandate that their own term of protection will apply to foreign works, provided that does not result in a term which is shorter than would be available in the country of origin. That is how the EU are able to require that their own uniform standard on the duration of copyright should apply in all EU member states.

As you have asked much the same question about the film Night of the Living Dead in the Copyright Law forum I will answer that one there, and keep this forum for the music topics.