Duke Law Journal, Vol. 46, No. 2 (November 1996), pp. 241-290

Abstract

The decision to photocopy or not to photocopy has significant consequences for the music consumer's pocketbook. Photocopies cost around three cents per page, while an original printed version of a choral work costs about thirty cents per page. The expense of buying rather than copying public domain sheet music is directly absorbed by the taxpayers who fund music education in public schools, the church congregations who must raise money for the church music budget, and the patrons of the fine arts who finance music ensembles with their admission fees or donations.

To recognize the high cost of sheet music is not to assert that legitimately registered works should be pirated at the copy machine. The point is that the decision to purchase rather than to photocopy is a costly one, that as consumers, taxpayers, and churchgoers we are directly affected when the decision to purchase is made unnecessarily. Arrangements of public domain music not sufficiently original to be protected by copyright law are free to all, yet, much to our financial detriment, the law does not sufficiently identify exactly which of these arrangements are fair game.

Music publishers, taking advantage of this uncertainty, intimidate the public into buying what they already own by affixing copyright symbols to virtually all public domain music as well as trivially different arrangements of public domain music. Publishers change titles without modifying lyrics or melody. They may claim full originality when they are really only “finders” of public domain songs. They register copyrights to such songs, claiming they are “original” works, and fail to set forth accurately the limited amount of any new material. They thereby falsely and unfairly obtain the benefit of the Copyright Act provision that places on an unauthorized user the burden to prove the invalidity of a certificate of copyright registration. This Article uses the particular experience of a choir director and visual comparisons of public domain and “copyrighted” works to inquire into the standard that governs the copyrightability of musical arrangements and, at the same time, to strengthen the voice of the public domain.