Dee, my spouse, and I started taking Argentine Tango classes together last fall. Tango is a complicated dance that takes years to learn, so it can be frustrating at times. Despite the frustration, we very much enjoy the classes, practicas (informal dances) and social dances we attend. One of the things I enjoy most about tango is the music! It’s so much fun! Tango music has a wonderful driving rhythm and is fabulously melodramatic. A song only lasts a couple of minutes, though, so it’s enjoyable without becoming overwrought. I’ve often thought it would be great fun to play piano in a tango band. In the process of looking online for tango music sources, I discovered that tango music scores are available for download for free from several websites. I was amazed. Can I download these scores without becoming a copyright infringer? Maybe.
Works in the Public Domain Due to Date of Publication
The Copyright Act of 1909 provided for an initial copyright term of 28 years from the date of first publication. If a timely application was filed with the Copyright Office, the copyright could be renewed and extended for another 28 year term (renewal term), for a total of 56 years of copyright protection. After copyright protection ceases, the work goes into the public domain. A public domain work is a work that is not protected by copyright. Public domain works belong to the public and anyone can use them without permission.
The Copyright Act of 1976 became effective on January 1, 1978. The 1909 Act applies to works published before January 1, 1978. As a result, any work published before 1923 is in the public domain. (1978-56=1922).
Getting back to the tango music, the song I want to learn first is Comme Il Faut, written by Eduardo Arolas, who died on September 29, 1924. Arolas was born and died in Argentina and also lived in Uruguay. From the information I found on the Internet, Arolas wrote Comme Il Faut sometime between 1917 and 1924. How can I be sure that Comme Il Faut is in the public domain? I asked the website that offers the download of Comme Il Faut that I want whether anyone there knows if it is in the public domain or the date it was written and/or the date it was published. So far, I have not received an answer.
Copyright Term for Works in Their Renewal Term When the 1976 Act Took Effect
Section 304(b) of the 1976 Act provides that
Any copyright still in its renewal term at the time that the Sonny Bono Copyright Term Extension Act becomes effective shall have a copyright term of 95 years from the date copyright was originally secured.
What does that mean if Comme Il Faut was first published in 1923? When §304(b) was originally enacted, it extended the renewal term from 28 to 47 years, adding 19 years to the renewal term. So if Comme Il Faut was first published in 1923, the total copyright term would be the 28 year initial term plus the 47 year renewal term, for a total of 75 years. That takes us through 1998. The Sonny Bono Copyright Term Extension Act became effective on October 27, 1998. Under our hypothetical, Comme Il Faut’s copyright term was extended another 20 years, to 2018. It’s possible that Comme Il Faut is protected by copyright until 2018.
Copyright Protection for Foreign Works under the Copyright Act of 1909
Since Comme Il Faut was written between 1917 and 1924, we know that the Copyright Act of 1909 applies. At that time, the U.S. had an isolationist policy regarding copyright that disfavored nonresident foreigners. The U.S. did not begin to move away from that isolationist policy until 1955, when it ratified the Universal Copyright Convention, a worldwide multilateral copyright treaty.
Under the 1909, non-resident foreigners could get copyright protection
When the foreign state or nation of which such author or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection, substantially equal to the protection secured to such foreign author under this title or by treaty; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto.
The existence of the reciprocal conditions aforesaid shall be determined by the President of the United States, by proclamation made from time to time, as the purposes of this title may require: Provided, That whenever the President shall find that the authors, copyright owners, or proprietors of works first produced or published abroad and subject to copyright or to renewal of copyright under the laws of the United States, including works subject to ad interim copyright, are or may have been temporarily unable to comply with the conditions and formalities prescribed with respect to such works by the copyright laws of the United States, because of the disruption or suspension of facilities essential for such compliance, he may by proclamation grant such extension of time as he may deem appropriate for the fulfillment of such conditions or formalities by authors, copyright owners, or proprietors who are citizens of the United States: Provided further, That no liability shall attach under this title for lawful uses made or acts done prior to the effective date of such proclamation in connection with such works, or in respect to the continuance for one year subsequent to such date of any business undertaking or enterprise lawfully undertaken prior to such date involving expenditure or contractual obligation in connection with the exploitation, production, reproduction, circulation, or performance of any such work.
The President may at any time terminate any proclamation authorized herein or any part thereof or suspend or extend its operation for such period or periods of time as in his judgment the interests of the United States may require.
(Copyright Act of 1909 §9.)
It was up to the President of the United States to determine whether the reciprocity necessary for non-resident foreigners to gain copyright protection existed.
The Mexico City Convention of 1902 and the Buenos Aires Convention of 1910, known as the “Pan American” Conventions, provided more protection to nonresident foreigners in the Western Hemisphere. However, non-resident foreigners were still required to comply with the draconian copyright formalities that existed at the time. One slip, such as putting the copyright notice in the wrong location, would lead to the work entering the public domain.
Section 16 of the 1909 Act required that works of foreign origin be printed in the U.S. to qualify for copyright protection. The effect was to prevent copyright protection from extending to works printed outside of the U.S.
Assuming Comme Il Faut was published after 1922 and is not in the public domain, I have no information as to whether Eduardo Arolas complied with the terms of the 1909 Act. Did he comply with the registration formalities? Did he renew on time and comply with the statute? Were his published works printed in the U.S.?
A search of the Copyright Office website is not helpful, because an online records search does not cover records prior to January 1, 1978. To research copyright registration records prior to January 1, 1978, you must either go to the Library of Congress in Washington, D.C. or pay the library staff to do the search for you. The current search fee is $165 per hour.
Copyright transfers of ownership are not required to be recorded in the Copyright Office. Assuming I receive some useful information through my Copyright Office search, I still will not know who the current copyright owner is if the copyright has been transferred, but not recorded.
Is Comme Il Faut an Orphan Work?
If Comme Il Faut is not in the public domain, is it an orphan work? An orphan work is a work for which the copyright owner cannot be located. Just because the copyright owner can’t be located doesn’t mean the copyrights don’t exist. In fact, orphan works are protected to the same extent as works for which the copyright owner is known. Can and should people use these orphan works, even though they know they may be infringing? It’s possible that many of the tangos currently copied, distributed and performed in the U.S. are orphan works.
My blog post Marybeth Peters Speaks About Ongoing Copyright Issues provides additional information on the orphan works issue.
What about the Copyright Restoration For Foreign Works?
Historically, the U.S. has offered less copyright protection to foreign works than to works created by U.S. authors. Before 1994, there were many foreign works that were protected by copyright in their countries of origin, but received no copyright protection under U.S. law and were in the public domain in this country. As part of the effort to bring the U.S. into compliance with the Berne Convention, Congress amended 17 U.S.C. §104A, Copyright in Restored Works.
Section 104A gives foreign works the same term of copyright protection applicable to U.S. works. Since many foreign works were in the public domain in the U.S. while they still received copyright protection in their countries of origin, §104A also provides for the restoration of the U.S. copyrights in those works, with certain exceptions, effectively removing those foreign works from the U.S. public domain.
It’s possible that the copyright for Comme Il Faut could be restored, even if it is in the public domain in the U.S. For more information on the restoration of foreign copyrights, see my post Restoration of Copyrights for Foreign Works Held Constitutional by U.S. Supreme Court.
Performing Rights Societies
Performing rights societies negotiate certain types of permissions on behalf of copyright owners. I searched the ASCAP (The American Society of Composers, Authors and Publishers), BMI (Broadcast Music, Inc.) and SESAC (Society of European Stage Authors and Composers) databases for Comme Il Faut. My searches did not produce results in any of these databases. Searching these sites did not provide me with any information on who owns the rights to Comme Il Faut.
At this point, I don’t have enough information to definitively determine whether I can download Comme Il Faut without running the risk of copyright infringement. I can’t tell from the information I’m getting through my research whether Comme Il Faut is in the public domain, and if not, whether it continues to receive copyright protection. It’s an illustration of some of the difficulties with our current copyright system when an attorney who knows what information to seek out can’t determine whether she’s a potential infringer. What about all of the artists who want to use the work without infringing, but don’t know what questions to ask or where to find the information? For most people who want to copy, distribute or publicly perform Comme Il Faut, and similar works, it’s a matter of evaluating the risks and making a decision.