Can you legally use a historical classical music recording in a video or book trailer?

I have previously blogged about “fair use”  in copyright law, and mentioned there in passing that both law and jurisprudence are much more permissive about short textual excerpts from long written works than about, especially, audio or images. If you want to use a Beatles song (or a Rush song) for a book trailer, you’d better pay the licensing fee (which can range from reasonable to astronomical) or be prepared to fight a lawsuit. (Noncommercial music theory/appreciation videos, which include an element of scholarship or criticism about the music itself, tick off a couple more boxes and are comparatively safe. Even so, veteran record producer Rick Beato has suffered DMCA takedowns for some of his marvelous “What makes this song great?” episodes on YouTube.)

But what about a classical piece of music — and specifically, a composer who has been dead for over 70 years? The music itself — i.e., “just the notes, ma’am” — is without a doubt in the public domain. But what about a historical performance? Say, you’ve decided a theme from a Beethoven or Bruckner symphony is just what you need for a book trailer.  It is quite easy to find an online source for a performance by, say, the Berlin Philharmonic under Wilhelm Furtwängler from the 1940s — for example, this gem here. Better still: in Europe, recordings that old have passed in the public domain.

Under German law, the copyright term for recordings which were made prior to January 1, 1963 has expired, meaning they have entered the public domain. Recordings taken after that date were given extended protection in 2013 and thus cannot be digitized. Aware of this rule, I only undertook to upload recordings which were taken before the 1963 date in order to fully comply with the law. Despite that precaution, the process that followed presented a number of unexpected challenges[…]

The 1963 cutoff date would imply that, for instance, Herbert von Karajan’s 1962 Deutsche Grammophon recordings of Beethoven’s nine symphonies are now in the public domain, at least in Germany (and the rest of the EU, presumably).

However, as discussed here at great length, the situation in the US is rather different. Audio recordings were treated very differently from other media, and public domain for them effectively did not exist in the US (except, of course, if the artists themselves placed the work there and the composition was not otherwise copyrighted). Only very recently was a form of public domain established (following a 3-year transition period to end in 2021) for recordings prior to 1922.

1923-1946 recordings will have an effective copyright term of 100 years (95+5), and 1947-1956 recordings a 110 year term (95+15). Recordings made between 1957-1972 will go into the public domain in 2067, as previously.

For so-called “orphaned works” (i.e, works for which no copyright owner can be located or identified, e.g., the record label is long out of business and nobody else picked up the rights at auction), the new law

Includes provisions to allow non-profit streaming of recordings which are verified to be out-of- print. This is a start …

But we are still out of luck for our hypothetical example. So what are your options?

If you have a specific reason to use that historical recording, you may need to go through the process of buying the license rights.

But if any decent performance of that specific piece of orchestral (or choral) classical music will do, then your options are basically:

(a) Try to locate a modern recording released under a Creative Commons license. (That would usually be an amateur orchestra.)

(b) Try to locate a “library music” recording for purchase from a site like PremiumBeat or Pond5. Such sites work much like stock photo sites: you pay a onetime fee, and the recording is a “work for hire” from a copyright point of view: once you’ve paid the fee, you own the recording and may do with it as you please. (Usually, this is a non-exclusive license: exclusive licenses will set you back more money.)

(c) Produce your own synthesized version using digital music production software. This requires at least some musical skill though, and the result may sound, well, “synthetic”, but this may actually be quite OK for a book trailer.

(d) If you have some experience conducting, assemble a pickup orchestra from a local conservatory and produce your own amateur recording. (This is hard work but not as hard as it sounds, since typically you could limit rehearsals and recordings to a short excerpt of the whole work.)

(e) As a last resort, find and buy a piece of library music that is similar in mood.

Solo instrumental or chamber pieces are much less of a challenge, since you are more likely to find it under (a,b), while option (d) — hiring one or a few students from your local conservatory to play a couple of takes for you to record — is much more practical than for something that requires a whole symphony orchestra. And of course, if it’s a solo piano, violin,… piece and you can passably play the piece yourself, recording yourself and (if need be) cleaning up the recording a bit in GarageBand or Logic Pro may be the simplest and cheapest option of them all.

Black Friday Promotion: Novel “On Different Strings” just $0.99 from Tuesday through Saturday

In honor of Thanksgiving as well as a cover refresh, my first novel, “On Different Strings” will be just $0.99 starting Tuesday 1 AM through the end of Saturday.

Set in a fictional US college town, it is a tale of second chances after broken hearts, of cultural and other differences being bridged by music, of heartbreak, and eventual redemption. Campus insanity and administrative Kafkaism figure along the way.

“A genre-busting love story” (Bookhorde.org)

“A love story, a detective mystery, a musical journey. You need this book!” (Pat Patterson)

 

Eerily prescient 1907 poem by Stefan George: “Der Widerchrist”

This poem was written in 1907 by the German symbolist and “national renewal” poet Stefan George. It is as if he was prescient about what would happen in his own country in 1933. Or perhaps he simply understood a timeless truth about human nature: the attraction of a charismatic flimflam artist or ideology, and how they can lead a nation astray and asunder.

Those who have read Peter Hoffmann’s priceless biography of the Stauffenberg brothers Berthold and Claus will be aware they were both members of Stefan George’s inner circle. And indeed, Claus would countless times refer to this poem whenever Hitler [y”sh] was being discussed.

Here is Peter Viereck‘s verse translation, and below that follows the German original.

The Anti-Christ

He comes from the mountain, he stands in the grove!

Our own eyes have seen it: the wine that he wove

From water, the corpses he wakens.

O could you but hear it, at midnight my laugh:

My hour is striking; come step in my trap;

Now into my net stream the fishes.

The masses mass madder, both numbskull and sage;

They root up the arbors, they trample the grain;

Make way for the new Resurrected.

I’ll do for you everything heaven can do.

A hair-breadth is lacking – your gape too confused

To sense that your senses are stricken.

I make it all facile, the rare and the earned;

Here’s something like gold (I create it from dirt)

And something like scent, sap, and spices –

And what the great prophet himself never dared:

The art without sowing to reap out of air

The powers still lying fallow.

The Lord of the Flies is expanding his Reich;

All treasures, all blessings are swelling his might . . .

Down, down with the handful who doubt him!

Cheer louder, you dupes of the ambush of hell;

What’s left of life-essence, you squander its spells

And only on doomsday feel paupered.

You’ll hang out your tongues, but the trough has been drained;

You’ll panic like cattle whose farm is ablaze . . .

And dreadful the blast of the trumpet.

Stefan George’s original:

DER WIDERCHRIST

Dort kommt er vom Berge · dort steht er im Hain!

Wir sahen es selber · er wandelt in Wein

Das Wasser und spricht mit den Toten.‹

O könntet ihr hören mein Lachen bei Nacht:

Nun schlug meine Stunde · nun füllt sich das Garn ·

Nun strömen die Fische zum Hamen.

Die weisen die Toren – toll wälzt sich das Volk ·

Entwurzelt die Bäume · zerklittert das Korn ·

Macht Bahn für den Zug des Erstandnen.

Kein Werk ist des Himmels das ich euch nicht tu.

Ein Haarbreit nur fehlt und ihr merkt nicht den Trug

Mit euren geschlagenen Sinnen.

Ich schaff euch für alles was selten und schwer

Das Leichte · ein Ding das wie Gold ist aus Lehm ·

Wie Duft ist und Saft ist und Würze –

Und was sich der grosse Profet nicht getraut:

Die Kunst ohne roden und säen und baun

Zu saugen gespeicherte Kräfte.

Der Fürst des Geziefers verbreitet sein reich ·

Kein Schatz der ihm mangelt · kein Glück das ihm weicht ..

Zu grund mit dem Rest der Empörer!

Ihr jauchzet · entzückt von dem teuflischen Schein ·

Verprasset was blieb von dem früheren Seim

Und fühlt erst die Not vor dem Ende.

Dann hängt ihr die Zunge am trocknenden Trog ·

Irrt ratlos wie Vieh durch den brennenden Hof ..

Und schrecklich erschallt die Posaune.

 

100 years ago: Armistice Day, end of WW I

100 years ago to the day, at the 11th hour of the 11th day of the 11th month, an armistice went into effect that ended The Great War. Its reverberations are many to this day: I will just mention a few below. ( The Rearview Mirror has some further reflections. )

The people of the time did not call it (yet) World War One, as they thought the Great War would be the war to end all other wars. Sadly, its ambiguous ending sewed the seeds of another war, to be more terrible still. The myth spread that the losing side had not really lost on the battlefield, but had been “stabbed in the back” on the home front (the so-called Dolchstosslegende). The Versailles Treaty, and the crippling and frankly unrealistic reparations payments it imposed, did the rest: in the resulting instability, a demobilized, shiftless lance corporal who’d been sent to eavesdrop on a newly formed “German Workers Party” ended up its leader instead, and his case officer (Capt. Ernst Röhm) the commander of its party militia. The rest is (grisly) history.

In general, out of a quite human, understandable desire to never see such a large-scale conflict again, pacifist and appeasement sentiments ruled that actually emboldened such as had learned a very different lesson from the conflict — said corporal [y”sh] and his future partners in crime.

Not every invention brought to bear on WW I was just meant to kill people and break things. The Bosch-Haber ammonia synthesis, for instance, saved millions from starvation then and has been a life-giver ever since, even as its existence probably extended the war by another two years.

Another legacy of the war has been the attempts to create international organizations which were to prevent war — the League of Nations then, the United Nations after WW II. Lofty as the aims in their creation were, the UN, in particular, would degenerate into a sickening parody of itself, where “human rights commissions” can be chaired by bloody dictatorships, and an organization meant to assist one group of refugees from one conflict ended up perpetuating its own existence through the expedient of extending refugee status to all descendants of the original group in perpetuity — a definition not used for any other group of refugees.

Yet another, very different, legacy was in poetry. Fifteen of the best-known war poems are gathered here: let me quote just three.

In Flanders Fields, by John McRae

In Flanders fields the poppies blow
Between the crosses, row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.

We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved and were loved, and now we lie
In Flanders fields.

Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.

The Soldier, by Rupert Brooke

If I should die, think only this of me:
That there’s some corner of a foreign field
That is forever England. There shall be
In that rich earth a richer dust concealed;
A dust whom England bore, shaped, made aware,
Gave, once, her flowers to love, her ways to roam,
A body of England’s, breathing English air,
Washed by the rivers, blest by the suns of home.
And think, this heart, all evil shed away,
A pulse in the eternal mind, no less
Gives somewhere back the thoughts by England given;
Her sights and sounds; dreams happy as her day;
And laughter, learnt of friends; and gentleness,
In hearts at peace, under an English heaven.

Perhaps, by Vera Brittain

(Dedicated to her fiance Roland Aubrey Leighton, who was killed at the age of 20 by a sniper in 1915, four months after she had accepted his marriage proposal)

Perhaps some day the sun will shine again,
And I shall see that still the skies are blue,
And feel once more I do not live in vain,
Although bereft of You.

Perhaps the golden meadows at my feet
Will make the sunny hours of spring seem gay,
And I shall find the white May-blossoms sweet,
Though You have passed away.

Perhaps the summer woods will shimmer bright,
And crimson roses once again be fair,
And autumn harvest fields a rich delight,
Although You are not there.

Perhaps some day I shall not shrink in pain
To see the passing of the dying year,
And listen to Christmas songs again,
Although You cannot hear.

But though kind Time may many joys renew,
There is one greatest joy I shall not know
Again, because my heart for loss of You
Was broken, long ago.

 

 

Midterm blue ripple, or midterm purple muddle

The 2018 midterm elections are mostly in. As usually happens in midterm elections, there was a loss in the house for the incumbent party.

But a “blue wave”? More like a purple muddle, or a “purple puddle”, as Glenn “Instapundit” Reynolds called it in USA Today.

In the house, the D got 220 seats vs. 199, with another 16 races not yet called. One of these leans R, and five more are toss-ups. FiveThirtyEight predicts eventually 34 seats will flip control. (One district, MN-8, bucked the trend by flipping D to R.)

In the Senate, something quite different happened. The GOP actually strengthened its hold there: at present, the balance is 52:45 and three races not yet called. Of those, Mississippi is headed for a runoff election, McSally leads “The Cinema Show” (or the Synema Chow?) by just under a percent with 3/4 of votes called, and Rosendale actually is leading  Jon Tester (with 84% of votes in). Let’s call it 54±1 R, 46±1 D.

A mixed bag also in the gubernatorial races. The saddest defeat, to me, was Scott Walker in WI, tempered by the good news in some other states like GA.

 

There are two basic ways to spin this cat (ahem), depending on where you come from::

Either that Trump threw himself in front of the “blue wave” and blunted it, if not outright turned it into a purple muddle.

Or that the “blue wave” did emerge and the Dems would have taken the Senate as well — if they hadn’t snatched defeat from the jaws of victory there by going for broke on Kavanaugh.

But there is no way the Democrats can spin this as an undivided victory. Will they be sobered by this and at least pay lip service to “working with the other side”? Sure, and I can get you a yuuuuge deal on some beachfront land in Nebraska.

Finally, while my dog would have made a more coherent representative than Occasional Cortex (or, as Ace calls her, “Loopy Ocasio Fiasco”), the scandalous disenfranchisement of Female Canine Americans continues unabated.