I wish to thank both Paul J. Heald and the Duke Law Journal for their gracious permission to reprint this article.

Mark Charette, Webmaster, http://www.woodwind.org/clarinet


¤ Baritone, Saint Gregory the Great Episcopal Church Choir, Athens, Georgia. Associate Professor of Law, University of Georgia School of Law. J.D., 1988, University of Chicago. Many thanks to my musically talented friends Jill Crandall, Kevin Kelly, Chuck Beaudrot, Esq., and Mark Schweizer, and to Jim Brinson, Director of the 45th Annual Sewanee Church Music conference, for letting me present a version of this paper to an audience of choir directors whose comments were invaluable. Thanks also for the insightful comments of those whose professional lives revolve around the law: Wendy Gordon, Chris Kelly, Jessica Litman, Shira Perlmutter, David Seidman, David Wolfsohn, Esq., D.M.A., and Fred Yen.

1. See Peter A. Jaszi, Goodbye to All That — A Reluctant (and Perhaps Premature) Adieu to a Constitutionally-Grounded Discourse of Public Interest in Copyright Law, Address at the American Association of Law Schools Annual Convention (Jan. 7, 1996), in 29 VAND. J. TRANSNAT'L L. 595 (1996). Professor Jaszi specifically mentioned as a threat recent legislation restoring copyright protection to certain foreign works, thus removing them from the public domain. See id. at 606-07 (discussing 17 U.S.C. § 104A(g) (1994)).

2. Jaszi concludes that “defenders of the public interest must begin to develop evidence and arguments that function, at least to some extent, independently of the specific terms of the Patent and Copyright Clause, and carry on the work of explaining why and to whom the public domain matters.” Id. at 611.

3. For evidence of this trend, see 17 U.S.C § 104A(g); 17 U.S.C. § 302(a), (c) (1976) (extending the term of copyright from 28 years with a 28-year renewal right, to the life of the author plus 50 years). Proposed legislation would further extend protection to the life of the author plus 70 years. See Songwriters Want Copyright in Tune with Laws Overseas; Adding 20 Years Would Bolster Economy, Backers Say, WASH. TIMES, Nov. 1, 1995, at A2. Advocates of consumer interests have combined forces to fight certain aspects of the Clinton Administration's “White Paper,” a policy statement on intellectual property and the Internet written by the National Information Infrastructure. Task Force Working Group on Intellectual Property Rights. The White Paper is widely viewed as advocating the expansion of the current scope of copyright protection in favor of publishers. For a discussion, see Pamela Samuelson, Intellectual Property Rights and the Global Information Economy, 39 Comm. OF THE ACM 23, 24 (1996) (“[I]f the public can be brought to understand how substantial a change is being sought, the White Paper may get the quick funeral it deserves.”).

4. Professors who teach copyright law have recently collaborated on a series of amicus briefs in major copyright cases and have consistently taken the side of the consumer, the copier, and the public interest against that of well-organized corporate enterprises. See, e.g., Pamela Samuelson, Brief Amicus Curiae of Copyright Law Professors in Lotus Development Corp. v. Borland Int'1, Inc., 3 J. INTELL. PROP. L. 103 (1995) (reprinting amicus brief in support of respondent in the Borland case, 116 S. Ct. 804 (1996)).

5. See, e.g., Keith Aoki, Authors, Inventors and Trademark Owners: Private Intellectual Property and the Public Domain (pts. 1 & 2), 18 COLUM.-VLA J.L. & ARTS 1, 191 (1994-95); Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533 (1993); Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990).

6. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 432 n.13 (1984) (commenting on intellectual property rights and rejecting the expansion of copyright liability for video piracy to sellers of VCRs).

7. Reproduced as Appendix B2.

8. William Billings (1746-1800) was one of first great American composers of choral music. His works remain popular today. See THE EPISCOPAL CHURCH, THE HYMNAL 1982: 2 HYMNS ACCOMPANIMENT EDITION (1985). The publication of his complete works in 1986 marked the first edition of the complete works of any American composer. See James Haar, Forward to 1 THE COMPLETE WORKS of WILLIAM BILLINGS at ix (Karl Kroeger ed., 1986).

9. A musical arrangement is a “derivative work.” See 17 U.S.C. § 101 (1994). An original derivative work is copyrightable. See id. § 103. The standard of originality required is discussed infra notes 61-81 and accompanying text. All works published more than 75 years ago are considered to be in the public domain and may be copied by anyone without the permission of the author or her estate. See 17 U.S.C. §§ 304(a)(1)(A) (1994). For a discussion of music and the public domain, see M. WILLIAM KRASILOVSKY & SIDNEY SHEMEL, THIS BUSINESS OF MUSIC 259-67 (7th ed. 1995).

10. See Appendix B1. The piece was first published in 1786. See 3 THE COMPLETE WORKS of WILLIAM BILLINGS, supra note 8, at 137, and infra notes 140-46 and accompanying text.

11. Compare Appendix B1 with Appendix B2.

12. See infra notes 172-78 and accompanying text.

13. See infra notes 61-81 and accompanying text.

14. Woods v. Bourne Co., 841 F. Supp. 118, 121 (S.D.N.Y. 1994) [hereinafter Woods I] (holding that seven arrangements of “When the Red, Red Robin Comes Bob-BobBobbin' Along” were not sufficiently original derivative works to be immune from an attempt by the composer's estate to exercise the § 304 (17 U.S.C.) termination right), aff'd in part and rev'd in part, Woods v. Bourne Co., 60 F.3d 978, 991 (2d Cir. 1995) [hereinafter Woods II]. The court assumed, as does this Article, that the same standard should be used to judge the originality of public domain compositions and arrangements of protected music. See id. at 990-93.

15. See McIntyre v. Double-A Music Corp., 166 F. Supp. 681, 683 (S.D. Cal. 1958).

16. Consolidated Music Publishers, Inc. v. Ashley Publications, Inc., 197 F. Supp. 17, 18 (S.D.N.Y. 1961).

17. See Ronald P. Smith, Arrangements and Editions of Public Domain Music: Originality in a Finite System, 34 CASE W. RES. L. REV. 104, 108-14 (1983) (noting cases that deny protection to arrangements derived by the mechanical application of general music principles). See id. at 111 (classifying McIntyre, 166 F. Supp. 681, as a “mere mechanic” case). Woods II also applies this test, emphasizing that “`the requirement of originality [cannot] be satisfied simply by the demonstration of “physical skill” or “special training.”’” 60 F.3d at 990 (quoting L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 491 (2d Cir. 1976) (en banc)).

18. See Smith, supra note 17, at 115-20 (identifying opinions that require a “substantial” difference between the original and the arrangement) (citing Wood v. Boosey, 3 L.R.-Q.B. 223, 230 (1868) (piano reduction of operatic score contained enough substantial differences to be a “new and separate work”)).

19. See id. at 122 (noting that some cases require that “derivations of public domain works need only represent a `distinguishable variation’ to warrant protection”) (citing Plymouth Music Co. v. Magnus Organ Corp., 456 F. Supp. 676 (S.D.N.Y. 1978)). Consolidated Music, see supra note 16 and accompanying text, would probably fall in this group.

20. Almost all the decisions are from federal district courts. See, e.g., supra notes 14-16, 19.

21. Telephone Interview with Annette Hicks, Parish Administrator, Saint Gregory the Great Episcopal Church, Athens, GA (Nov. 27, 1996). In Athens, McCopy's currently charges four cents per page.

22. This estimate based on an informal survey of anthems offered for sale by Vester Music at the 45th Annual Sewanee Church Music Conference, July 9-16, 1995.

23. For an illustration from just one relevant market, assume that 100,000 twentymember church choirs in the United States sing at least six public domain arrangements per year and the average length of each work is five pages. The decision to buy new sheet music for those performances (100,000 choirs x 20 choristers x 6 anthems x 5 pages x $.30 (cost of each piece of sheet music) _ $18 million) as opposed to photocopying (100,000 x 20 x 6 x 5 x $.03 (copy cost) _ $1.8 million) implicates a substantial sum ($16.2 million), all of which comes at the expense of other church programs. Given that far more than 100,000 churches have choirs of more than twenty (mailing addresses collected in a database sold by American Church U.S.A. list more than 345,000 churches in the United States), and given the popularity of public domain church music by Bach, Brahms, Billings, etc. (to name just some of the B's), $16.2 million would seem to be a gross underestimation. And this figure does not take into account taxpayers' money spent to finance public performances by private groups or on sheet music for music programs in the millions of public educational institutions around the country.

24. See, e.g., Appendices A2, B2, and C2.

25. See id.

26. KRASILOVSKY & SHEMEL, supra note 9, at 251-52.

27. U.S. CONST. art. I, § 8, cl. 8 (“Congress shall have Power . . . [t]o promote the Progress of . . . useful Arts, by securing for limited Times to Authors . . . the exclusive Right to their respective Writings”).

28. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (Copyright law “is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.”); see also Mazer v. Stein, 347 U.S. 201, 219 (1954) (explaining that the granting of a copyright is intended to encourage individual effort by personal gain in an attempt to advance public welfare); KRASILOVSKY & SHEMEL, supra note 9, at 261-62 (discussing the justifications for a temporal limitation). Works currently fall into the public domain 50 years after the death of the author. See 17 U.S.C. § 302 (1994).

29. For an examination of this experience, see L. RAY PATTERSON & STANLEY W. LINDBERG, THE NATURE of COPYRIGHT 23-27 (1991) (explaining that the self-interest of copyright owners combined well with governmental interests to make copyright an ideal “instrument of censorship” in seventeenth century England).

30. 8 Anne, ch. 21 (1719) (Eng.). See generally Lyman Ray Patterson, The Statute of Anne: Copyright Misconstrued, 3 HARV. J. ON LEGIS. 223, 225 (1966) (explaining that the Statute of Anne modified prior British copyright law by extending copyright protection to anyone complying with the statute (not just members of the book trade), and by limiting copyright protection to a term of years). In opposing legislation offered in the nineteenth century to extend the duration of copyright protection, English historian Thomas Macaulay argued that “[f]or the sake of the good we must submit to the evil [of copyright protection]; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.” Thomas Macaulay, Speech Before the House of Commons (Feb. 5, 1841), in 8 THE WORKS of Lotto MACAULAY 195, 199 (Lady Hannah More (Macaulay) Trevelyan ed., 1866), cited in Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 STAN. L. REV. 1343, 1344 (1989).

31. See L. Ray Patterson & Craig Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L. REV. 719, 785-86 (1989) (explaining that the significance of copyright in this period of English history “was not unknown in eighteenth century America because of the importance attached to the freedom of the press, speech and religion, as demonstrated by the adoption of the First Amendment”); see also Paul J. Heald, The Vices of Originality, 1991 Sup. CT. REV. 143, 173-74 (“[The Framers] wanted the Intellectual Property Clause to prevent abuses like those perpetrated when the Stationer's Company exercised complete control over publishing in England.”).

32. See Heald, supra note 31, at 174.

33. See William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 HARV. L. REV. 1659, 1687 (1988); see generally William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STUD. 325 (1989) (discussing how to strike an appropriate balance between access and incentives in copyright law based on the principles of efficient resource allocation). Cogent arguments can be made that the economic rationale for copyright is incomplete. See Gordon, supra note 30, at 1435-58 (noting that economists “have as yet offered no full-scale philosophic defense for their position that individual desert should be irrelevant to the avocation of intellectual property rights”).

34. Act of May 31, 1790, ch. 15, 1 Stat. 124-26.

35. Compare 17 U.S.C. § 102 (1994) with 17 U.S.C. § 102 (1977) (mentioning no explicit copyright protection for “architectural works”).

36. But see Stephen Breyer, The Uneasy Case for Copyright. A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 351 (1970) (“[C]opyright is very much of a mixed blessing. It can lead to prices higher than necessary to secure production … [and] can impose large transactions costs … .”).

37. See supra note 9.

38. Under the Copyright Act of 1909, ch. 320, 35 Stat. 1075 (1909), the failure to renew a copyright after 28 years of registration put many works published after 1920 and before 1964 into the public domain. See La Cienega Music Co. v. ZZ Top, 44 F.3d 813, 814-15 (9th Cir. 1995).

39. 17 U.S.C. § 101 (1994).

40. Id. § 103(b). See also U.S. COPYRIGHT OFFICE, LIBRARY OF CONGRESS, CIRCULAR No. 14 (1995) (“Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes.”).

41. 536 F.2d 486, 492 (2d Cir. 1976) (en bane) (holding copyright of plaintiffs version of “Uncle Sam” bank invalid because bank was not substantially original).

42. Id.


44. See id. at 48 (noting that “once the lighthouse is built, exclusion of anyone could be wasteful”).

45. See id. But see Gordon, supra note 30, at 1439 (“Sole reliance on the wealthmaximizing criterion to grant or deny copyright is highly questionable.”). Gordon suggests “individual desert” is relevant as a non-encouragement-based theory to explain copyright. Id. at 1447.

46. See supra text accompanying notes 28-34.

47. See Smith, supra note 17, at 125 n.146.

48. Hear also Paul Simon's “American Tune,” which borrows directly from the main chorale of Bach's “St. Matthew's Passion.”

49. Some have even argued that virtually all new works are inescapably based on public domain materials. See Litman, supra note 5, at 966-7, 1007-11.

50. See 17 U.S.C. §§ 101, 103(a) (1994).

51. See id. § 103(b) (1994).

52. See L. Batlin & Son, Inc. v. Synder, 536 F.2d 486, 492 (2d Cir. 1976) (en banc).

53. 499 U.S. 340 (1991).

54. See id. at 344--61; see also supra note 27.

55. See Feist, 499 U.S. at 351.

56. See Heald, supra note 31, at 168-75 (arguing that Congress could not use its power to regulate interstate commerce to grant copyright-like protection to unoriginal expression).

57. See infra text accompanying notes 89-94.

58. See Heald, supra note 31, at 158-59 (stating that Feist frustrates Congress from “conducting a direct inquiry into whether protecting a particular type of work from a particular type of borrowing is necessary to promote the public welfare”).

59. See Feist, 499 U.S. at 358 (“[W]e conclude that [the Copyright Act of 1976, 17 U.S.C. § 102 (1976)] envisions that there will be some fact-based works in which the selection, coordination, and arrangement are not sufficiently original to trigger copyright protection. ”).

60. New music software should revolutionize the way in which the music publishing industry delivers music to consumers. Publishers will no longer be forced to estimate market demand before they decide to print a fixed number of copies of public domain sheet music they plan on selling. Technology exists that will allow the publishers to “call up” a piece of music on a database and then print only the number of copies that are actually ordered. The lowered cost of producing printed sheet music should facilitate competition with the photocopy machine; technology will no doubt make public domain sheet music easier to acquire in the long run.

61. 60 F.3d 978 (2d Cir. 1995) (Woods II).

62. The issue of whether the versions of the song were derivative works was made relevant by 17 U.S.C. § 304(c)(1)-(3) (1994), which gives an author, or his heirs, the right to terminate an improvident assignment of copyright at the end of the renewal term. However, this termination right, along with the right to capture continuing royalties, does not extend to original derivations of the assigned copyrighted work prepared before the termination of the assignment. See Woods II, 60 F.3d at 986. For example, Woods' heirs terminated Woods' assignment of the copyright of the song at issue to the predecessor in interest of Bourne Music. Bourne argued that the versions of the song that continued to generate royalties for it were original derivative works and therefore immune from the heirs' claims. Thus, the right to the royalties fumed on whether the income-producing versions of the song were sufficiently original to constitute derivative works. In their reliance on precedent involving arrangements of public domain musical works, the district court and the Second Circuit both presumed that the standard of originality for derivative musical works in the termination context is the same as that applied in the context of arrangements of public domain music. See id. at 990-91.

63. See id. at 981, 989, 992.

64. Woods I, 841 F. Supp. 118, 121 (S.D.N.Y. 1994), aff'd in part and rev'd in part, 60 F.3d 978 (2d Cir. 1995).

65. Woods II, 60 F.3d at 993.

66. Id. at 991 (quoting Woods I, 841 F. Supp. at 121).

67. Id. at 990 (citing L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 491 (2d Cir. 1976) (en banc)).

68. Id. at 992.

69. Id. at 990 (quoting Woods I, 841 F. Supp. at 121).

70. Id. (quoting Batlin, 536 F.2d at 492). The court also endorsed the Seventh Circuit's opinion in Gracen v. Bradford Exchange, 698 F.2d 300 (7th Cir. 1983) (mimetic painting of Dorothy taken from a scene of the motion picture The Wizard of Oz not an original derivative work), that “advised special caution in analyzing originality in derivative works, since too low a threshold will `giv[e] the first [derivative work] creator a considerable power to interfere with the creation of subsequent derivative works from the same underlying work.” Id. (quoting Gracen, 698 F.2d at 305).

71. 105 F. Supp. 393, 400 (S.D.N.Y. 1952).

72. Id. at 400. The court also held that a composer's song was not rendered uncopyrightable simply by reason of his use of musical “sequences” employed by others. Id.

73. 838 F. Supp. 162 (S.D.N.Y. 1993).

74. See id. at 170-71 (finding jazz harmonies added by Duke Ellington to “Satin Doll” protected by copyright).

75. See id. at 169-70.

76. 166 F. Supp. 681 (S.D. Cal. 1958).

77. Id. at 683.

78. 231 F.2d 550, 553-54 (7th Cir. 1956).

79. 91 F. Supp. 473, 474 (N.D. 111. 1950).

80. 197 F. Supp. 17, 18 (S.D.N.Y. 1961).

81. Without the music, it is not possible to determine the extent of the editing that the court describes. Perhaps it was so extensive that an original work was created. The court found that there was “at least a modicum of creative work” present and that this modicum was more than a “mere trivial variation.” Id.

82. See generally Paul J. Heald, Payment Demands for Spurious Copyrights: Four Causes of Action, 1 J. INTELL. PROP. L. 259 (1994) (arguing that purchasers who mistakenly rely on a seller's false claim of copyright can recover under theories of common law fraud, unjust enrichment, consumer fraud, and breach of warranty).

83. KRASILOVSKY & SHEMEL, supra note 9, at 262.

84. The distributor included two other short works by Brahms for the $1.60. I will continue to use the $1.60 figure because it was impossible to purchase “O bone Jesu” by itself.

85. See Appendix A1. This reproduction come from an undated Carus-Verlag Stuttgart publication of Johannes Brahms, Geistliche Chormusik 128. The editorial notes in the introduction do not suggest that changes have been made from the original. See id. at 15-17. The sheet music itself is preceded by a facsimile of its original 1865 cover. Id. at 127. Note that the publisher of this public domain version is also the publisher of the “copyrighted” version in Appendix A2.

86. Reproduced as Appendix A2.

87. See 17 U.S.C. § 504 (1994) (providing civil damages of up to $20,000 per infringement); 18 U.S.C. § 2319 (1994) (allowing criminal penalties of up to ten years in prison).

88. For example, in some European countries, sheet music featuring a new typeface is protectable. See infra note 135 and accompanying text.

89. See 3 THE COMPLETE WORKS OF WILLIAM BILLINGS, supra note 8, at 180-81.

90. A slur is “a curved line extended over a smaller or larger succession of notes to indicate the grouping of them with a certain continuity.” See 17 THE NEW GROVE DICTIONARY OF MUSIC AND MUSICIANS 385 (Stanley Sadie ed., 6th ed. 1980) [hereinafter NEW GROVE DICTIONARY]. Importantly, in choral music, “slurs are conventionally (and unnecessarily) notated only over notes all of which are to be sung on a single syllable.” Id.

91. The reduction does move the tenor line up an octave, which is what most pianists playing without the reduction would do. Although a competent pianist could certainly play the piece on the piano without the reduction, writing it out makes playing easier.

92. See supra notes 61-81 and accompanying text.

93. 17 NEW GROVE DICTIONARY, supra note 90, at 385.

94. See supra notes 27-40 and accompanying text.

95. G.F. Handel, “Hallelujah, Amen” from Judas Maccabäus (1933 version) (Norwood Hinkle, ed.).

96. See, e.g., G.F. Handel, Judas Maccabäus (Arthur D. Walker ed.) (an undated, uncopyrighted publication containing a score of the entire oratio). Appendix C1 has been taken from this publication.

97. See supra notes 27-81 and accompanying text.

98. Handel, supra note 95. Appendix C2 does not contain measures 21-38.

99. Id. Hinkle also marks “poco dim.” on measure 23, “cresc.” on measure 25, “f” on measure 29, and “ff adagio” on measure 35. Id.

100. “Lively, at an exact tempo.” 1 NEW GROVE DICTIONARY, supra note 90, at 268; see also 7 NEW GROVE DICTIONARY, supra note 90, at 419.

101. See Handel, supra note 96, at 211. Andante allegro is defined “[a]t a lively walking pace.” 1 NEW GROVE DICTIONARY, supra note 90, at 268, 397.

102. 499 U.S. 340 (1991).

103. Id. at 362-363.

104. Id. at 362.

105. By definition, a phone book is a compilation, and not technically a derivative work, although the definitions plainly overlap. See 17 U.S.C. § 101 (1994). Both are treated together, however, for the purposes of scope of protection. See 17 U.S.C. § 103 (1994) (“The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.”). Recent opinions do not indicate that a different standard of originality should be applied to the author's contribution in the two cases. See, e.g., Tempo Music, Inc. v. Famous Music Corp., 838 F. Supp. 162, 168 (S.D.N.Y. 1993) (employing Feist to judge the originality of Duke Ellington harmonies to “Satin Doll”).

106. Woods II, 60 F.3d 978, 992 (2d Cir. 1995). See supra notes 61-70 and accompanying text.

107. See 1 MELVILLE NIMMER, NIMMER ON COPYRIGHT § 2.05[C], 2-57 (2d ed. 1978) (noting a “tendency to require a somewhat greater degree of originality in order to accord copyright in a musical arrangement”).

108. Mid America Title Co. v. Kirk, 59 F.3d 719, 722 (7th Cir.), cert. denied 116 S. ct. 520 (1995).

109. Id. See also Victor Lalli Enter., Inc. v. Big Red Apple, Inc., 936 F.2d 671, 673 (2d Cir. 1991) (stating that a document must “demonstrate the requisite minimal originality” in order to receive copyright protection).

110. See 35 U.S.C. § 103 (1994).

111. Interview with David Wolfsohn, J.D., University of Chicago; D.M.A., Manhattan School of Music (Aug. 4, 199s).

112. See John Philip Sousa, The Stars & Stripes Forever: For Two Pianos, Eight Hands (1988) (arranged by Mack Wilberg).

113. See Carte v. Duff, 2s F. 183 (S.D.N.Y. 188s) (finding arrangement of Gilbert and Sullivan's “Mikado” unoriginal).

114. 3 L.R: Q.B. 223 (1868).

115. See discussion of the realization of figured basses infra notes 132-34 and accompanying text.

116. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 363 (1991) (“It is an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course.”) (citing Brief for Information Industry Assoc. at 10 (no. 89-1909)).

117. 999 F.2d 1436 (11th Cir. 1993) (holding that the selection and arrangement of the Miami Yellow Pages is not original).

118. See supra text accompanying note 91.

119. See id.

120. See 17 U.S.C. § 103(b) (1994) (copyright to derivative works does not extend to pre-existing materials).

121. Intermediate copying of protected musical material in order to access and reproduce only the public domain elements should constitute a fair use of the protected material. See 17 U.S.C. § 107 (1994) (defining “fair use” of copyright). For example, a new English translation of the words of a public domain Latin hymn is probably protected by copyright. A choir director may wish to perform the unprotected ancient Latin version. Copying the entire composition, including the new translation, in order to block out the new English words, leaving only the public domain music and Latin lyrics for distribution to the choir is almost certainly a fair use. See Sega Enter. Ltd, v. Accolade, Inc., 977 F.2d 1510, 1520 (9th Cir. 1992) (holding that copying protected elements of computer program in order to gain an understanding of unprotected functional elements is fair use); Atari Games Corp. v. Nintendo of America, Inc., 975 F.2d 832, 839 (Fed. Cir. 1992) (holding that downloading copyrighted material to access its public domain components can be permissible fair use).

122. See Northern Music Corp. v. King Record Distrib. Co., 105 F. Supp. 393, 400 (S.D.N.Y. 1952); Cooper v. James, 213 F. 871, 872 (N.D. Ga. 1914).

123. 213 F. 871 (N.D. Ga. 1914).

124. See id. at 872-73.

125. 13 F. Cas. 910 (C.C.N.Y. 1850) (No. 7,437) (holding arrangement of “The Serious Family Polka” uncopyrightable).

126. “Southern Harmony” is a style best characterized by the music contained in William Walker's Southern Harmony and Musical Companion. See WILLIAM WALKER, SOUTHERN HARMONY AND MUSICAL COMPANION (Glenn C. Wilcox ed., 1987) (containing a collection of hymns, tunes, odes, psalms, and anthems first printed in 1854). The melody in Southern Harmony is generally found in the tenor line and, in order to facilitate singing by untrained voices, the music is often written in “shape notes” rather than traditional notation. See id. at v-viii. Most songs in Southern Harmony lack an alto line entirely. See id. at x.

127. 838 F. Supp. 162 (S.D.N.Y. 1993).

128. Id. at 168.

129. Id.

130. Id. at 169.

131. Id.

132. See 6 NEW GROVE DICTIONARY, supra note 90; at 544-45.

133. See Smith, supra note 17, at 112 n.45.

134. A clef is “[t]he sign placed at the beginning of a staff to denote the pitch of one of its lines.” See 4 NEW GROVE DICTIONARY, supra note 90, at 473-75 (discussing the history of the uses of various different clefs). Only bass and treble clef are considered standard for modern choral compositions.

135. See, e.g., J.H. Reichman, Design Protection in Domestic and Foreign Copyright Law: From the Berne Revision of 1948 to the Copyright Act of 1976, 1983 DUKE L.J. 1143, 1243 n.525 (“Typeface designs are protectible as ornamental designs under the Italian Design Law of 1940.” (citation omitted)).

136. See Monotype Corp. v. International Typeface Corp., 43 F.3d 443, 446 (9th Cir. 1994).

137. An example of this would be Handel's Messiah, on file in the University of Georgia music library. See Handel's Conducting Score of Messiah (reproduced in facsimile from the Manuscript in the Library of SG Michael's College, Tenbury Wells) (1974).

138. See West Publ'g Co. v. Mead Data Cent., Inc., 799 F.2d 1219 (8th Cit. 1986).

139. See Heald, supra note 31, at 160-61 (arguing the likelihood that Feist overrules West, noting that the Feist opinion cites to a law review critical of West).

140. See THE COMPLETE WORKS OF WILLIAM BILLINGS, supra note 8, at xiii-lxiii.

141. See supra note 120 and accompanying text.

142. See supra note 121 and accompanying text.

143. See Appendix B1.

144. See 3 THE COMPLETE WORKS OF WILLIAM BILLINGS, supra note 8, at 180-81.

145. This is the only change he makes. See id.

146. See id. at 376.

147. See Smith, supra note 17, at 137.

148. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 364 (1991).

149. Id. at 352.

150. See Smith, supra note 17, at 136-37 n.203 (discussing four possible fingerings of Bach's Sonata in C Major for two violins and harpsichord). See generally 6 NEW GROVE DICTIONARY, supra note 90, at 567 (defining “fingering”).

151. See Smith, supra note 17, at 136 (“A difference in fingering . . . is often the difference between a mediocre performance and one of artistry. This is equally true of bowing . . . .”).

152. See id. at 136 n.203.

153. BWV 1037 (1741). It is interesting to note that authorship of this sonata has, in fact, been attributed to Johann Gottlieb Goldberg. See THEMATISH-SYSTEMATISCHES VERZEICHNIS DER MUSIKALISCHEN WERKE VON JOHANN SEBASTIAN BACH 754 (Wolfgang Schmeider ed., 1990).

154. See Smith, supra note 17, at 136-37 n.203.

155. Id.

156. See supra text accompanying note 14.

157. See Northern Music Corp. v. King Record Distrib. Co., 105 F. Supp. 393, 400 (S.D.N.Y. 1952).

158. In other words, would another director testify, “That's an obvious thing to do”?

159. See Tempo Music, Inc. v. Famous Music Corp., 838 F. Supp. 162, 168-69 (S.D.N.Y. 1993).

160. My director shares this conclusion.

161. See Joe Young, John Siras, & Jack Little, In a Shanty in Old Shanty Town (M. Witmark & Sons 1932). This publication contains both waltz and fox trot versions of the same melody.

162. See 17 U.S.C. § 102(b) (1994).

163. See Appendices B1 and C1.

164. See supra text accompanying notes 160-61.

165. Translated, “accented” or “stressed”. 11 NEW GROVE DICTIONARY, supra note 90, at 647.

166. Translated, “connected smoothly.” 10 NEW GROVE DICTIONARY, supra note 90, at 610.

167. Woods II, 60 F.3d 978, 991 (2d Cit. 1995) (citation omitted).

168. 264 F. Supp. 603 (C.D. Cal. 1967).

169. Id. at 605.

170. See Feist Publications, Inc, v. Rural Tel. Serv. Co., 499 U.S. 340, 3624 (1991).

171. L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 492 (2d Cir. 1976) (en banc).

172. See U.S. Copyright Office, Filling Out Application Form PA, at SPACE 6: Derivative Work or Compilation.

173. See KRASILOVSKY & SHEMEL, supra note 9, at 263-64 (explaining Copyright Office inquiries).

174. For example, “Arrangement for piano and orchestra” will suffice. See Filling Out Application Form PA, supra note 172, at SPACE 6: Derivative Work or Compilation.

175. See supra notes 21-23 and accompanying text.

176. The Copyright Office could, for example, require greater detail in answers given to Question 6(b) in Form PA. See id. Additional information on the application instructions would help arrangers understand what is an original contribution.

177. See generally Heald, supra note 82.

178. See 17 U.S.C. § 506(c). But see Donald Frederick Evans & Assoc., Inc. v. Continental Homes, Inc., 785 F.2d 897, 912 (11th Cir. 1986) (no private right of action under 17 U.S.C. § 506(c)).

179. See, for example, the World Wide Web edition of Playback, the bimonthly magazine of the American Society of Composers, Authors and Publishers (ASCAP). In the “Legislative Update” section of this year's January-February issue, ASCAP encourages readers to lobby members of Congress in favor of the proposed “Life Plus 70” copyright extension: “Those of us who make our living from our music, and those who hope to, deserve to be compensated when our music is used.” PLAYBACK (1996) <http://www.ascap.com/playback/1996/february/legislative.html#congress> (emphasis added).

180. United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948).

181. Mater v. Stein, 347 U.S. 201, 219 (1954).

182. In championing an amendment to proposed legislation affecting copyright on the Internet, for example, the Digital Future Coalition makes the following argument against labeling the unlicensed viewing of a web site as a copyright violation: “If such automatically erased images are considered true `copies’ under the Copyright Act, … the right and opportunity to browse information on-line now enjoyed by millions will be seriously underminded or-at some point soon-completely precluded.” Digital Future Coalition, Digital Future Coalition Amendment to “NII Copyright Protection Act” Facilitating Browsing and Networking (visited Nov. 11, 1996) <http://www.ari.net/dfc/legislat/pagers.htm#il06>. (link currently down)