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.

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