The Sound of Music and the Fair Use Doctrine
date: 2018-03-19 Gregory Dennis Read by:

“The hills are alive with the sound of music” are the famous lyrics from the prolific song, The Sound of Music, composed by Richards Rogers, lyrics written by Oscar Hammerstein II, and sung by the character Maria Rainer. This song is included in the thematic score for the Tony Award winning musical titled with the same name that opened on Broadway on November 16, 1959.  Songs from this musical have been covered, sampled, remixed and interpolated by more than 10 famous artists, from the likes of Christina Aguilera, John Coltrane, Gwen Stefani, Lady Gaga and other big names in the music industry.  This raises questions about copyright infringement, and the ability of other artists to cover, sample, interpolate and remix the score of this ageless musical; thereby opening the bottomless chasm of the Fair Use Doctrine for copyrights.

Title 17 of the United States Code, contains multiple Acts that lay down the framework for copyright protection in the USA. Section 303 regulates the duration of a copyright for works created prior to January 1, 1978 and incorporates Section 302.

§303 Duration of copyright: Works created but not published or copyrighted before January 1, 1978

(a) Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302. In no case, however, shall the term of copyright in such a work expire before December 31, 2002; and, if the work is published on or before December 31, 2002, the term of copyright shall not expire before December 31, 2047.

(b) The distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of any musical work, dramatic work, or literary work embodied therein.

§302 Duration of copyright: Works created on or after January 1, 1978

(a) In General.—Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author’s death.

(b) Joint Works.—In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author’s death.

Currently on the United States Library of Congress Copyright Catalog there are over 76 copyright registrations relevant to The Sound of Music and neither Mr. Rogersnor Mr. Hammerstein claimants on any of the records. Mr. Hammerstein II died in 1960 and Mr. Rogers passed away in 1979. Since the work was created and published prior to the enactment of the Act, there was no mechanism to register copyrights in the US during that time.

However, currently the copyright is owned by the Rodgers & Hammerstein Organization (“Organization”).Presumably the work was originally published with a copyright notice and renewed; so it possibly enjoys 95 years of copyright protection post publication date, which was in 1959, so in 2055 the work will enter the Public Domain and can be used by anyone without procuring a license from the owners. Currently, the musical composition, musical lyrics and script can be licensed for a steep fee via the Organization. Of course the exclusive right of use or reproduction of any copyright in the United States is subject to the Fair Use Doctrine. 

§107 Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;(2) the nature of the copyrighted work;(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The Fair Use Doctrine allows non-owners of a copyright to use the copyright of another for limited purposes and above is the four-factor legal test. So in for example a student or professor at Julliard can use excerpts from the score of The Sound of Music to write a critical essay or educate pupils within the classroom setting respectively; parody and satire are also within the scope of the Fair Use Doctrine. This is a highly opaque legal test and requires the judicial eye to determine the limits of the Fair Use Doctrine.

Another key point that needs to be discussed is covering, sampling, remixing and interpolating music from The Sound of Music. Covering is performing a song that is someone else’s. Sampling music is taking actual bits from a recording and inserting it into a new song. Remixing is very similar, it is taking an existing song and remaking it with adjustments by utilizing an actual recording of the song. Interpolation is using parts of apreexisting song’s melody or lyrics and creating a new song but without actually using the existing song’s recording in the new work.  Covers, samples, remixes and interpolation all require the user to acquire a license or permission from the copyright owner in order to be used for commercial purposes.

The Sound of Music is a great example of how licensing fees and royalties allow the owner of one hit song to earn money during his/her lifetime and the lifetimes of his/her assigns or heirs.  Maybe it is time we rethink our legal careers, and go buy musical instruments and make real money.  But alas, the artist will always require a crack attorney to inspect the legalities of her works, and thus the band will play on.