copyrighted midi files vs public domain midi files under public domain or creative commons

Question

Here's a scenario. Let's say I use the public domain midi files to make professionally produced sheet music/tablature for teaching purposes.

I know I can sell these because I can do whatever with public domain. Also with various creative commons, I can do the same with a proper attribution.(except the "no commercial/no dreivatives version", right?)

Now there seems to be 2 types of copyrighted midis.

1. Copyrighted midis of copyrighted music.

2. Copyrighted midis of public domain music.

And this is where it gets confusing for me.

Well, the case 1. I think it's clear, that I can't produce sheet music/tab and sell these without proper license, which can be difficult to obtain. So here's the question 1.

Question 1. Can I, as a private music transcriber, take on a client who wants me to transcribe a copyrighted music using a midi file for their personal use at home, for the purpose of education?

Question 2. Can I do the same thing with the copyrighted midis of public domain music, as in serve as a private music transcriber for a client?

Added bonus discussion.

Many of the works I'm interested in are classical music composed centuries ago, yet there are midi files that are copyrighted. What is the reason for this? Is it because it takes work to produce the said midis? What's stopping me from making my own midi from old copies of the sheet musics and copyrighting the midis I produce?

Let's say I were to do take, then can I produce the sheet music and sell them online? And then use the midis for making electronic recordings or music videos or other derivative works to upload to video hosting sites like youtube and others?

Any help is appreciated

Answer 1

Many of the works I'm interested in are classical music composed centuries ago, yet there are midi files that are copyrighted. What is the reason for this?

Let's deal with this one first by considering a piece by Bach (which Bach doesn't matter - I chose it because its shorter than Beethoven):

If copyright law had existed at the time and had the same form as today then the composition by Bach would be copyright when it was fixed in tangible form - that is, when it was written as a manuscript or recorded on tape (not an option in the 17th or 18th century of course), not when he was picking out the notes on his harpsichord.

While the copyright lasts, everyone that wishes to perform it or transform it has to have Bach's permission which may include payment of royalties. If those performances or transformations were fixed in a tangible form (i.e. recorded audio, on manuscripts or as MIDI files) then the creator of those works has copyright in them as derivative works independent of Bach's copyright in the original. This is why recordings, books of sheet music and MIDI files can have copyright protection even if there is no copyright in the original composition.

So yes, you can make a MIDI of public domain music and claim copyright in the MIDI. Now you may be using sheet music which has current copyright protection, if so, you would need the permission of the sheet music copyright holder (which may be given in the front of the book), be able to use the music as part of a statutory scheme by paying a royalty or have a fair use/dealing defence.

In light of the above, your two Questions have the same answer as they are effectively the reverse process of making MIDIs from sheet music i.e. making sheet music from MIDIs. You would need the permission of the MIDI copyright holder (and the original composer if not public domain), be able to use the music as part of a statutory scheme by paying a royalty or have a fair use/dealing defence.

Answer 2

A recorded piece of music has two copyrights:

-The copyright in the composition (notes, lyrics, chords, sheet music; when set on paper this is considered a tangible form)

-The copyright in the recording (the actual track, also known as a master, usually a sound recording)

A MIDI file per se may or may not be considered a recorded performance, and may or may not be eligible for copyright depending on how original it is (though the default is that they are eligible). If it does fall under copyright, then you need permission from the holder of the master (the recorded performance).

However the original composition, if in the public domain, is not eligible for copyright protection. You do not need permission to create your own midi of a composition in the public domain. A publisher cannot claim copyright on sheet music of a composition in the public domain, only on their own edition (their commentary, fingering, ordering of the material, embellishments), and only if it is substantially original or different from editions in the public domain.