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Here's a hypothetical situation:

Musician came across a trumpet concerto that Musician wants to use for a competition to win the chance to perform it with a local orchestra. There is a well-known and published transcription of the concerto for trumpet and piano, which Musician purchased, and an original version for trumpet and full orchestra. Musician reached out to the publisher to ask about purchasing the music for full orchestra, and they informed Musician that it was never published and only exists as a handwritten manuscript in a library, and after emailing multiple Belgian libraries, Musician finally found the one that has the manuscript and is willing to digitize it and send a scan to Musician.

Musician's understanding is that (a) the music is protected under copyright as soon as it is written down and (b) Musician needs to get a separate license/permission from the copyright holder to perform the music. At the same time, though, after telling the publisher about the original manuscript, the publisher told Musician that it looked at SABAM's website (which appears to be the Belgian equivalent of ASCAP) and that the version of the concerto for trumpet and orchestra is not currently registered, and that it was never declared or was lost.

While it was composed in 1938, the composer died in 1970 which may mean that all his work should be protected under copyright (death + 70 years). At the same time, Musician also did some genealogical research on the composer, who appears to have no children himself and was an only child, so Musician cannot reach out to any direct family who might have inherited the copyright. Neither the libraries nor the publisher know who Musician could reach out to as the copyright holder, either.

Has Musician done everything that could reasonably be expected to find the proper copyright holder? Tickets to the concert (if I did get to perform it) would be free, so there's no issues of monetization/royalties either.

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  • I am not a lawyer... but, conceivably, given the non-monetized aspect, your purpose might fall under "fair use", in the U.S. (for example), a concept often used in academic writing and work, which allows people to (not-for-profit... and not undercutting anyone else's profits) use copyrighted things. So, keywords "fair use".
    – paul garrett
    Commented Sep 18 at 16:28
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    @paulgarrett It's hard to see how it would satisfy the other factors of fair use beside the nature of the use. And even that seems troublesome if they win the competition and do the public performance of the concerto.
    – Barmar
    Commented Sep 18 at 16:33
  • @Barmar, agreed, if they "go big-time" it could easily get beyond the "fair use" allowance. Someone better educated than I am in these things might be able to comment about "putting in escrow" an approximate royalty amount for monetized performances, until-and-if the royalty situation can be figured out... ?
    – paul garrett
    Commented Sep 18 at 16:36
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    And to be clear, I don't think the fact that the performance tickets are free makes a difference. Youtube is free, but you can't perform there without a license.
    – Barmar
    Commented Sep 18 at 16:39
  • @paulgarrett it wouldn't. Unless very specific circumstances, such as when the performer is offering criticism of the work as the main purpose of the reproduction..
    – Mindwin Remember Monica
    Commented Sep 19 at 14:52

2 Answers 2

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17

The work in question is called an "orphan work". Some countries have a mandatory licensing system for "orphan works", but in the U.S., mandatory licenses are only available for covers of musical compositions not used in motion pictures or television (which may sufficient to solve the problem in this case).

Failure to reach the author of an orphan work despite due diligence in attempting to do so is not a defense to infringement, although it does suggest that the likelihood of the owner suing for infringement is probably below average.

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  • copyright.gov/orphan
    – Mindwin Remember Monica
    Commented Sep 19 at 14:55
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    US law also makes a distinction between wilfull and non-wilfull infringement, and someone who can demonstrate a bona fide effort to locate a copyright holder is unlikely to be found guilty of wilfull infringement, especially if they can show they have set aside money for the purpose of paying royalties if the copyright holder is found.
    – supercat
    Commented Sep 19 at 15:20
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For a person who knows copyright persists in a work, an unsuccessful attempt to contact the copyright owner is no defence to infringement.

As an aside, due diligence is a defence to prosecutions of strict liability offences. Where due diligence is available as a defence it would require the person to do all that is reasonable to avoid the wrong.

An example where due diligence would apply is for the offence of misleading advertising. If a person published a misleading advertising, they would be not guilty if they had done all that was reasonable to ensure its accuracy.

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  • So theoretically it would be illegal to perform the concert, but in practice it would be fine because nobody will be able to sue, as nobody will know to have been holding the copyright? As it's a civil case not a criminal one, the police won't automatically open an investigation.
    – vsz
    Commented Sep 19 at 4:13
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    And in copyright violation, the most reasonable way to avoid liability is to not violate copyright.
    – Mindwin Remember Monica
    Commented Sep 19 at 14:51
  • @vsz copyright infringements are a civil matter so not illegal. As long as you dodge the other criminal offenses surrounding copyright which giving the orchestra (a) copie(s) may constitute already
    – Hobbamok
    Commented Sep 20 at 17:10

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