How do I easily and effortlessly find out DEFINITIVELY if a song is in the Public Domain for free use in a TV show?
December 14, 2007 10:12 AM   Subscribe

Here is an example... My Boss: "We want to use the Can Can song. Our music guy has done a recording for us. Is it in the Public Domain?" Me: "Yes. The composer, J. Offenbach, has been deceased since 1880 and if we are doing our own arrangement we are fine." My Bosses Boss: "About 5 years ago, I tried to clear this song for use in a TV production and discovered that it was NOT in the Public Domain. Elle Vator, can you research this and let us know the answer two months ago?"

Okay, so I need a clear and absolutely sure was to prove that we are clear to use specific classical songs, in our show.

As I said in my previous question about photo rights, I am in one of those 'opportunity' jobs, in that I can either succeed in a difficult, no-budget kind of a situation and be a hero to the show I am working on, or fail and be entirely expendable. I would like to be a hero... please help me do so!

When I was trained, I was told that the way to ascertain if a song was usable was to check the Date of Death of the composer(s). If it was more than 50-100 years in the past, we could use it (we're in Canada, but need to take international rules into consideration for international sales). What I do is I find something confirming the composer's DoD, sometimes Wikipedia, which I know is not ideal. I print it off, attach a note and file it in the legal binder where I would normally put a Release.

I then got another note from the legal department that I had to check the arrangement we were using and do the same thing with the Arranger as well.

My current problem is with "Gaiete Parisienne" (a.k.a "The CanCan") by J. Offenbach. This was used in our show before I started and was okayed by the person I was hired to replace. According to the above two qualifications, we are fine. However, a higher-up in production seems to feel that we are not fine.

I am in a position to solve this problem before it starts on 20 other songs.

How do I get a definitive answer and come off as heroic and highly unexpendable to my bosses? Please advise.
posted by Elle Vator to Media & Arts (13 answers total) 4 users marked this as a favorite
This is American (US), but might it be persuasive?
posted by katemonster at 10:20 AM on December 14, 2007

A rights clearance service may be in order.
posted by bz at 10:21 AM on December 14, 2007

IANAL, and particular to your circumstance, not a Canadian lawyer, which it seems you already have. But generally, the professional way to do this is to hire a rights clearance organization, some of whom will indemnify your organization for music clearance rights issues. If your organization is unwilling to do that, and is doing commercial work, they're taking on their own risk, and if you, an expendable person, is wrong, they are on the hook. Still if you're on a do-it-yourself basis, here are some helpful links.
posted by paulsc at 10:28 AM on December 14, 2007

As per the Act:

The term for which copyright shall subsist shall, except as otherwise expressly provided by this Act, be the life of the author, the remainder of the calendar year in which the author dies, and a period of fifty years following the end of that calendar year.

Your boss's boss is wrong. It is possible that s/he was trying to clear a specific recording of the work, which would not be public domain if performed in the last fifty years (depending). Similarly, if your music guy has recorded it, then that recording is copyrighted, too. If it's not work-for-hire, then he would hold that copyright until fifty years after he dies. If he's working for a company, I think the company holds the copyright for fifty years flat.

In any case, you are in the clear. But IANAL.

And, y'know, for what it's worth, most production assistants don't have to put up with nearly the kind of bullshit you seem to, and there's lots of work out there.
posted by ten pounds of inedita at 10:32 AM on December 14, 2007

I don't have an easy answer for you, because "effortlessly" is asking a bit much. I've done both literary and music clearances, and it is never "effortless." Your statement about the death of the composer being 50-100 years in the past is way too vague to be a safe legal definition (and not accurate in the US). As a producer, I can tell you that your bosses are fools to leave this legal issue to an entry-level assistant. They should have some kind of legal vetting, or they could be sued at a later date.

However, one way of checking this is to see if anyone else has already done it. A Google search for "royalty free classical music Offenbach" may turn up classical music libraries who have already done the research, and may have recordings of the Offenbach. You could call them and pretend to be a potential buyer and ask if the royalty free part of their business is because the publishing rights are in public domain (the performance rights will be work for hire). I've always found that a polite "please educate me, I am ignorant of your world" demeanor will get questions answered. You could then document both their offering of the recording as royalty free and your notes on the conversation. This MIGHT be considered due diligence.

I am not a lawyer, and your employers should have one.
posted by ljshapiro at 10:37 AM on December 14, 2007

Correct me if I am wrong, but French law, in regards to public domain, stands at 70 years currently. This particular work would be subject to French law, given that he was a French composer. In my research I have found no indication of copyright in regards to the work of Offenbach. If I were you, I would lay out in as simple terms as possible exactly what the public domain laws are currently in regards to this work (with links to sources) and run it by your legal department (if you have one). If not then I think the only way to convince this boss of yours is to supply proof of your argument, and perhaps ask him exactly how he came to believe that this work was under copyright. If he was trying to clear an artist's recording of this work, then it may indeed have been under copyright. The original arrangement however should be public domain by all laws aware to me.
posted by ISeemToBeAVerb at 10:39 AM on December 14, 2007

IANAL either, but I've taken a course of copyright at a Canadian university. Ten pounds is right on both accounts. Canadian copyright is 50 years after the creator's death if the copyright is held by an individual or 50 years after publication if the copyright is held by an organization. If boss' boss said that song wasn't cleared, either the person who told him so was wrong (possible) or it was regarding a specific person/band recording that song that was created in the last 50 years.

In general, this is the nightmarish world of copyright by default. Under almost all copyright law in the western world, all creative endeavours are automatically copyrighted, requiring no registration or any other kind of documentation (unlike patents). Not only is there no registration for copyrighted works, but if the copyright is owned by someone other than the creator (e.g. a recording label), there is no way of knowing who that third party is (short of them suing you). Registration of copyright works exists, but it's optional and a relatively new creation, so it's not really a useful resource for older works. Thus the reason why rights clearances services like those linked above exist.

But as ljshapiro said, your organization really needs a lawyer to handle this. Even if you're 100% sure you're correct about a work being in the public domain, that does not prevent some organization that did a very famous recording of it from suing you, claiming they have the rights to it. They assume you don't have a lawyer or have one that doesn't understand copyright law and you'll just settle with them and "license" the rights to a work in the public domain. While less common in Canada than in the States, this still happens way more than it should.

@IseemToBeAVerb: Legally, it's not at all clear if the terms of foreign copyright matters. This is what shut down the International Music Score Library Project back in October. Michael Geist believes the Supreme Court only cares about Canadian copyright terms, but again, that doesn't stop lawsuits.

Sorry for the rant, I'll take my soapbox home now.
posted by Nelsormensch at 10:51 AM on December 14, 2007

Don't really have much advice here, but reading this question reminds me of this article I saw on Boing Boing about groups that copyright works in the public domain. I could see why someone would think the song was safe, have all the evidence, and then still get an infringement notice from somewhere.
posted by BenzeneChile at 10:56 AM on December 14, 2007

This is the second question like this you are asking. Doesn't your firm have a lawyer, in-house or outside to consult on issues like this?

I have no clue about Canadian copyright law, but "arrangements" of songs may be considered original copyrighted works on their own. So just because Offenbach died over a century ago, the particular arrangement "our music guy" used to record the song may actually be under someone else's copyright.

It turns out that the reason everyone knows about the "can-can" is because of Cole Porter's 1953 Broadway production, for which he did write the music, and which I almost guarantee you is still under copyright.

So unless "music guy" worked off a piece of sheet music that read "Gaiete Parisienne" by J. Offenbach, you are very much not okay. The licensing info is here.

If you have to do this for 20 more songs, you really should run this through a lawyer.
posted by Pastabagel at 11:17 AM on December 14, 2007

I meant to say, that I do know one way or another whether you are okay. I have no idea if the song you're talking about is actually in that production, so get a lawyer.
posted by Pastabagel at 11:19 AM on December 14, 2007

I want to second ljshapiro -- rights issues like this (and your previous question) should NOT be the domain of an entry-level assistant; they need to be handled by a rights professional who is fully versed in the complex legal ins-and-outs of copyright. I work at an art museum and we have a department devoted solely to these issues, as well as legal counsel who frequently gets involved in researching, determining risk, etc.

I sympathize with you, Elle Vator -- I understand that you're under tremendous pressure to get definitive answers and quick solutions to these very difficult problems that your bosses are throwing at you. But the thing is, there are frequently not any definitive answers and quick solutions for these issues -- certainly not ones that AskMe can provide every time something like this comes up for you. Your bosses are making profoundly unrealistic demands. They are exposing themselves to serious legal risk by trying to foist what are potentially very complex issues onto someone who is not trained in this field, and you (I fear) are being set up to take the fall if and when it blows up in their faces.
posted by scody at 11:32 AM on December 14, 2007

I am incredibly appreciative of all the advice and feedback you guys are offering, including the soapbox rants and the pointing out that there are other jobs out there.

Yes, I am in an entry level position and yes I am dealing with stuff the lawyers should be dealing with. However, the lawyers are overworked and if the buck gets passed to me out of necessity and because they believe I can figure it out, I am not about to pass the buck on. This is not about griping, it's about figuring it out. I don't see my situation as a negative thing - being on a slightly broken show and being smart and resourceful is a brilliant opportunity for advancement... as long as I don't fuck it up. :)

To answer your questions:

- Everything does get run through a lawyer, as well as a series of execs and producers.

- The 'music guy' composed numerous original tracks for use and re-use in the show that we own outright, including all our theme music. His version of the CanCan sounds cribbed by ear as opposed to sheet-music perfect.

I am glad to hear that many of you believe that my Bosses Boss is mistaken. I'm going to check out these links and get back to you. I'll let you know how it all turns out.
posted by Elle Vator at 11:53 AM on December 14, 2007

This is not about griping, it's about figuring it out.

Fair enough. So since it sounds like this has, essentially, become a regular part of your job. what about looking into continuing education classes in Toronto regarding copyright, clearance, etc., and seeing if if the production company would be willing to pay for you to enroll? If they want you to take on this sort of complex and potentially risky work (and given that you're willing to take it on), then it would behoove everyone to make sure you're trained properly.
posted by scody at 12:14 PM on December 14, 2007

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