Let's say someone discovered a collection of dusty papers in the attic of a tavern that Ludwig van Beethoven stayed at in the late 1820s. It is a complete manuscript of the supposedly unfinished Tenth Symphony (the uncovered sketches were actually for his 11th). The discoverer sent flakes of the paper to antiquarians (who verify that it has the proper age), and photocopies of certain sections to renowned musicologists who can confirm beyond a reasonable doubt that the music is authentically Beethoven's.

The manuscript, otherwise unread by humans, is auctioned off and a big music company based in the US, MyTunes, purchases it for 8 million dollars. From that moment on their goal is to make as much money off this symphony as possible. They do not just want to own the manuscript, they want to own the 10th Symphony.

The tactic I envision for them is to restrict access to the manuscript itself (by storing it in a vault and encrypting every scan file so that it can only be opened when you're logged into the company's network), and have every recording made in their own private studio, with musicians signing NDA's. The resultant recordings would be theirs, and they would strike down any unauthorised use whatsoever. Music enthusiasts cry, but MyTunes sees their profits rise as everyone wants to know what Beethoven's 10th sounds like. If it is such a banger as the 5th and 9th, then every movie and commercial producer will want to use the music too. And later, they authorise their NDA orchestra to go on tours and give performances across the world, with heavy restrictions on the sheet music. Maybe they just have the orchestra memorise it everything, so no piece of paper carrying the notes ever leaves MyTunes HQ.

Now, leaks are of course going to be rampant, but I want to know if MyTunes' plan can be foiled legally. The 10th symphony itself is most likely going to be in the public domain everywhere, based on how long Beethoven has been dead, but by keeping the sheet music hidden, can that public domain material still escape their grasp?

What I am considering is people transcribing the legally obtained recordings, to get some version of the sheet music back. It's going to be difficult for some sections, but with millions of people cooperating, some version of the 10th is going to be restored. Is this transcription going to be in the public domain too? Can every orchestra and advertisement company make bucks off this open-source sheet music instead of paying MyTunes; or would it, as a transcription of copyrighted recordings of a public domain work, be copyrighted?

One way around it would be for MyTunes to drastically alter the 10th and never even record the original (or destroy it) therefore creating a new unique piece of music that they own, but a Quasi-10th Symphony is not going to be nearly as profitable as the real deal so they won't do that.

I have now put the legally transcribing part of the question on law.SE. Feel free to answer in the more general scenario, or with frame challenges to how MyTunes should operate to maximise the profitability of owning the only copy of Beethoven's 10th in existence.

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    $\begingroup$ Nope. Public domain. $\endgroup$ – DT Cooper Sep 16 at 17:15
  • $\begingroup$ I think they'd earn more money from publicity by opening it to the world. $\endgroup$ – NomadMaker Sep 16 at 17:16
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    $\begingroup$ This is an excellent question that you might want to instead ask on law.SE. Basically, can you reconstruct PD content from a copyrighted work based on such content? (But also, VTC, because I don't think the question belongs here...) $\endgroup$ – Matthew Sep 16 at 17:20
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    $\begingroup$ For the United States, compulsory licensing would apply, I think, allowing others to create and sell recordings of their rendition of the work. See, for example, exploration.io/what-is-a-mechanical-license $\endgroup$ – GrumpyYoungMan Sep 16 at 17:28
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    $\begingroup$ See also law.stackexchange.com/questions/33141, which points out that MyTunes could try to use license terms of their recordings to their advantage. However, I suspect they'd have a very interesting court battle, plus all they could really do is sue whoever "leaks" the transcribed score for damages, and that would probably turn into a PR fiasco, if not out-and-out copyright reform. (Hey, we can hope for the latter 🙂.) $\endgroup$ – Matthew Sep 16 at 18:14

From a legal point of view, there is a distinction between the composition itself, recordings of the composition, performance and reproduction.

  • The composition comprises notes and lyrics (when applicable) that make up the piece of music.
  • Recordings cover specific performances of the composition recorded.
  • Performance is the act of rendering the composition in public (radio broadcast is a performance in legal terms).
  • Reproduction covers copies of recordings and their sales.

Most countries in the world limit copyright lengths. The longest is life+100 years and the global average is about life+60 years.

Beethoven (17 December 1770 – 26 March 1827) died almost 200 years ago, so no copyright protection can be given to the composition itself. If someone can write it down upon listening to the performance it would be legal to distribute the notes. As @AlexP noted, however, the performance would not be a simple rendering of the music notation as found in the original manuscript. So, this part might result in a legal dispute. But this would lead to the publication of the original manuscript as the most likely outcome.

Performance, specific recordings, and reproduction of these recordings will be covered by the copyright law. It would be illegal to distribute copies of recordings made by the MyTunes corporation.

Of course, MyTunes can try to hire an army of lawyers and go to the courts. But considering that we are talking about the lost work of one of the most famous composers in the history they are not likely to win. Moreover, the court might order to surrender the original manuscript (if hearings are not in the US) or provide copies of the manuscript to the public.

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  1. The recording of a performance is protected by ℗ copyright. But you knew that.

  2. The underlying music may or may not be protected by © copyright, depending on lots of stuff. In this particular case, Beethoven being dead for almost 200 years, it is not protected.

  3. Contrary to your assumption, the music would not be "in the public domain everywhere", because most countries in this world do not have a concept of public domain. In particular, in countries with legal systems derived from Roman law (known as "Civil law" countries in the Anglo-Saxon world), authorship rights (that's what we call them) come in two kinds: patrimonial rights, corresponding to the Anglo-Saxon copyright, and non-patrimonial rights. Non-patrimonial rights include the right to the integrity of the work, and the right to be known as the author of the work; and those rights are both inalienable and imprescriptible. Aristotle still holds the right to the integrity of his works, and the right to be known as their author.

    We do have a concept called "public domain", but it is unrelated to what Anglo-Saxons mean by those words. In Roman law countries, the public domain is the stuff owned directly by the state. We do not have a concept of an author releasing their non-patrimonial authorship rigths.

  4. Not releasing the sheet music would in a large part defeat the purpose; without the sheet music, many (maybe most) people won't give a toss about the random collection of sounds which the performing company pretends to be Beethoven's Tenth. Critics won't even bother to write reviews; amateurs would file it under mildly interesting curiosities.

  5. They cannot alter the music and call it Beethoven's Tenth. See point 3 above.

  6. But beware that in such cultured pieces of music quite a lot of music is not notated, and it is expected to the improvised by the performer(s). Worst case for the purpose of the question are the cadenzas; the sheet music will have a few notes and the word "Cadenza"; the performer is expected to supply their own piece at that place, in aesthetic harmony with the rest of the work, or else (quite often nowadays) use somebody else's famous cadenza.

  7. Moreover, it often happens that orchestral performances are arranged to be playable by what instruments the orchestra actually has available.

  8. So that the best approach for liberating the music is for some philanthropist to fund what amounts to a reverse engineering effort. Get a team of qualified people, for example, performers specializing in Beethoven or other Romantic music and a good composer schooled in common practice music, in a clean room, transcribe the performance, then identify what are most likely the notated parts and the improvised parts, cut out the cadenzas and release the result of their work.

  9. If the dastardly company attempts to sue, I'm pretty sure that they will fail; the phrase "unjust enrichment" comes to mind.

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  • $\begingroup$ On point 5, they could alter it slightly and label it work based on Beethoven's Tenth. If no one knows what Beethoven's Tenth actually sounds like, then it may still retain most of the value. $\endgroup$ – XRF Sep 17 at 5:39
  • $\begingroup$ @XRF: And who on Earth wants to listen to a piece of music "based on" Bach's Brandenburg Concertos? That is the point of point 5. $\endgroup$ – AlexP Sep 17 at 7:04
  • $\begingroup$ The value of a copy is substantially more when the original doesn't exist or isn't known. While the work based on the tenth would be worthless if people knew the tenth, being the only work made with a full knowledge of the original would probably give it some value. $\endgroup$ – XRF Sep 17 at 23:09
  • $\begingroup$ @XRF: As far as everybody knows, there is no Beethoven's Tenth Symphony. Then those jokers come and say that verily there is such a a marvel, and they have it, and here is a piece "based" on it. Why would anybody believe them? Because the music sounds sort-of like Beethoven? Any skilled composer can do it, and anyway we have been able for half a century or more to program computers to spit out music which sounds a bit like Bach or like Mozart or like Beethoven. No sir, without putting up the original for analysis they won't be able to gain our trust. $\endgroup$ – AlexP 2 days ago

First of all, copyrights on intellectual works have a limited validity after the death of the author, usually between 50 and 90 years, then the works becomes of public domain.

Your company can either sell the work as copyrighted John Doe's work, losing the appeal of being Beethoven's work, or as Beethoven's work but losing the copyrights.

But even if we park this issue, it's pointless to have a work and not having it listened to.

The Vatican had tried a similar approach with Allegri's Miserere, which was forbidden to be published or copied under menace of excommunication. Well, guess what, it took a single skilled musician to write it right after only two listenings

The Mozarts visited the Sistine Chapel, where Wolfgang heard and later wrote down from memory Gregorio Allegri's famous Miserere, a complex nine-part choral work that had not been published.

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  • $\begingroup$ I know of Mozart's tale, that was in fact one of the inspirations for this question. I wonder if it would be legally possible under modern copyright laws. $\endgroup$ – KeizerHarm Sep 16 at 17:22

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