1

I am writing a progressive rock song of around 10 minutes in length. For the first two minutes, I play Shostakovich's Fugue in A Major. This piece is not in public domain, so I know I have to make some changes in order for it to be considered different. So, to change it, I have changed the instrument from piano to electric piano, and added bass guitar and drums.

I'm aware that there is somewhat of a fuzzy line between what can be copyright claimed and what is safe. So, to stay on the safe side, what would I have to do to prevent myself from being copyright claimed?

I could relegate it to the background, and have sound effects be the main sound for the period of time that I have this excerpt in the music, but I would only be open to this if that was the absolute only way I could get away with it.

My main source of concern is due to the recent influx in copyright claims over songs that share a few notes in common, but seeing as this is a classical piece and not a pop song written by people who want money from baseless claims, I'm under the impression that I'd have a little wiggle room with my interpretation of the piece.

  • 1
    It might be worth looking into what Eumir Dedato had to do to release his version of Also Sprach Zarathustra. The original piece by Strauss, was still under copyright at the time, but the arrangement has a radically different arrangement and feel. – Michael Seifert Aug 13 '19 at 17:23
  • "what would I have to do to prevent myself from being copyright claimed?" - In general you cannot prevent this. Anyone can make a claim. Where automated systems are used, frequently such claims are automatic and do not consider fair use or accidental similarity at all. – Brandin Aug 20 '19 at 9:28
6

As the question says the "Fugue in A Major" by Shostakovich is not in the public domain. The work was published in 1950, and so would not be PD under US law, and Shostakovich died in 1975, and so his works would not be PD in countries using a life+50, life+70, or longer term.

Therefore, simply "making some changes" would be the creation of a derivative work and would be copyright infringement in and of itself, even if that work was not published or distributed.

If a relatively short segment of the fuge was used, it might be considered a "fair use" under US copyright law, or perhaps a "fair dealing " in the laws of those countries that recognize this exception to copyright. But that is a very fact-intensive determination; it depends on the amount used, the manner and purpose for which it is used, and the harm, if any, to the market for the original work. One can never be absolutely sure that a use is a fair use until a court rules that it is. A two minute excerpt is fairly substantial, and might well not be held to be a fair use.

Of course, you could seek permission from the Shostakovich estate (or whoever owns the copyright on the fugue). They might or might not grant it, and might or might not demand a fee.

(As another answers mentions, there may be some question if the works of Shostakovich are protected by copyright under US law.)

| improve this answer | |
  • If, like I suggested in the question, I were to take that arrangement of the fugue and put it in the background behind other sound or dialogue, how would that stand up? I know the answer isn't clear cut, but would that help? I have also looked into seeking permission from Boosey & Hawkes, which I believe is the correct place to do so. – hvksh Aug 13 '19 at 18:07
  • 2
    @hvksh See law.stackexchange.com/questions/32422 Whether a use serves as a replacement for the original, thereby harming the market for the original, is often a significant aspect of fair use decisions. Whether a use is commercial is another. Whether a use comments on the original or is in some way "transformative" is yet another. Putting the music into the background probably strengthens the case for fair use, but 2 minutes is a long time in music. Really, this is something you would need an expert to even guess at, and a court decision to be at al sure of. – David Siegel Aug 13 '19 at 20:32
0

If the work were protected by copyright, your would have only two options. The first is to obtain a license to modify the work; it is your duty to find the licensing agents. The other is to hope to just do it and hope to get away with it under a fair use analysis. The latter option is extremely risky, because the courts are extremely protective of musical works – millions in damages have been awarded for 1 second's worth of infringement.

The third option is to presume that the work is not protected by copyright, in the US. In a relevant decision, Golan v. Holder, 565 U.S. 302, the court comments fn. 34 that

Because Shostakovich was a pre-1973 Russian composer, his works were not protected in the United States. See U. S. Copyright Office, Circular No. 38A: The International Copyright Relations of the United States 9, 11, n. 2 (2010) (copyright relations between the Soviet Union and the United States date to 1973).

But note that in the current version of that circular (linked above) this is fn. 6. The fact that it is unprotected in the US does not mean that it is universally unprotected. Your other concern would be whether it was protected under Soviet law, and for that you really need to hire a lawyer. At the time of the composition, the law (the 1928 law) seems to have been life+15. So, assuming that the work is not protected by copyright is somewhat risky w.r.t. being sued in US courts, and much more risky for other courts.

| improve this answer | |
  • 2
    It appears from the very section of Golan v. Holder that mentions Shostakovich that his works were restored to copyright under the Uruguay Round Agrement Act (URRA). I cannot confirm this, but it is far from assured that his works are unprotected in the US. – David Siegel Aug 13 '19 at 16:45
  • 3
    @DavidSiegel: The state of whether Soviet works were under copyright in the US was a mess for a long time, but not any more; the United States retroactively recognized all Soviet/Russian copyrights (regardless of date) in 1996, via the URAA law you mention. See the "Berne Convention" section in the Wiki article "International copyright relations of Russia". – Michael Seifert Aug 13 '19 at 17:09
  • (Much to the chagrin of US community orchestra players like myself, who would love to play some Shostakovich from time to time...) – Michael Seifert Aug 13 '19 at 17:11
  • The SCOTUS opinion, from 2012, postdates URAA by 18 years, which is cited in the opinion. I guess this means that the majority does not agree with your interpretation; but I agree that it is not assured that his works are unprotected. – user6726 Aug 13 '19 at 17:33
  • 3
    The SCOTUS opinion was expressly about whether Congress had the right to reinstate copyright of pieces that had formerly been in the public domain; it was brought by a group of musicians, conductors, performing arts organizations, etc. who now had to pay for works they had formerly performed for free. Footnote 34 in the linked decision is basically saying that Shostakovich's works fall into this category. (It says that "his works were not protected"—note the tense; the main text that this footnote is attached to implies that now "only a few bars" can be performed without permission.) – Michael Seifert Aug 13 '19 at 18:33

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.