Thread - Symphony No.1, TrV 94 (Strauss, Richard)

A brief explanation of this piece's copyright status, and the status of the 1999 edition.

Some facts

• The work was composed by the young Richard Strauss, a German living in Germany, in 1880.
• The work was first publicly performed in 1881.
• The work was recorded on CD in 1986.
• This edition of the work was published in 1999, and is to my understanding the first edition ever prepared and published of the work.

For Germany

• Richard Strauss died in 1949. When this edition was published in 1999, his music was certainly still protected by copyright in Germany. The copyright protection on Strauss' work in Germany expired in 2020.
• The editio princeps rule only applies to works which are first published after the author has been dead for over 70 years. Since Strauss' copyrights had not expired in 1999, it could not apply. In light of Motezuma, it might not apply anyway (i.e., the symphony may not have been ein nicht erschienenes Werk in 1999); moreover, the symphony was recorded in the 1980s and released on CD (which could be the first Erscheinung — but again, the question doesn't arise, because even if we take 1999 to be the first Erscheinung, it was erscheint when Strauss was protected by German copyright).
• The scientific edition rule only applies to editions of works which are no longer copyrighted at the time of the publication of the edition. In Germany, this only applies to editions "if they represent the result of scientifically organised activity and differ substantially from previously known editions of the works or texts"; this edition is not portrayed as a scientific edition, but even if it were, it would not have a 25-year period of protection, because it was an edition of a work still copyrighted in 1999.
• No editor is identified for this score. There are no musical indications of an apparently editorial variety. The volume contains two works — this symphony and another unrelated composition (the latter reprinted directly from a much older source). The only new addition that has been made to the volume is a short preface from the Strauss family and introduction (whose author is credited). The Strauss family thanks the author of the introduction only for writing the preface and not for editing any of the music. The only person designated as the author is Richard Strauss. According to German copyright law, "The person designated as the author in the usual manner on the copies of a released work or on the original of an artistic work is regarded as the author of the work in the absence of proof to the contrary"; since Strauss is the only designated author, there is not even a claim of editorial authorship present here. In other words, the work presented can be taken to be that of Richard Strauss alone.
• Conclusion: The copyright on the work itself expired in 2020. The edition does not likely have any copyright status independent of Richard Strauss' copyright, which expired in 2020.

For Canada

• Richard Strauss' copyrights expired in Canada (in general) in 2000.
• In Canada, this work was not a posthumous work, because it was publicly performed in 1881, during Richard Strauss' lifetime, and so the copyright on the work itself expired in 2000.
• We have the general assumption that engravings per se do not qualify for new copyright in Canada. There are, as mentioned, no indications of any editorial authorship. In line with a Canadian Federal Court's acceptance in Winkler v. Hendley of a principle similar to copyright estoppel in US law, the that authorship for copyright purposes lies solely with Richard Strauss can probably be taken for granted here given the lack of even a claim of editorial authorship or identification.
• For whatever it might be worth, Canada (as we understand it based on recent discussions) applies the Rule of the Shorter Term to all works by foreign nationals, except Americans and Mexicans. While this might not be strictly applicable here with respect to the edition (where the questions do not really deal with lengths of terms), they certainly can only add to the impression that the edition itself is in the Canadian public domain, assuming it is in the German public domain.
• Conclusion: The work and edition are both apparently in the public domain in Canada.

For the United States

• This work was created before 1978. When it was first published by US standards is not entirely clear to me, but the term of copyright seems to be fairly clear in any case.
• The work was created and performed before 1891, when the US first established international copyright relations with anyone. I do not recall the details of the application of common law copyright to works made by foreign nationals before 1891, but I recall that common law copyright did apply to those works, so long as they remained unpublished abroad. The case law on this is very slim. Twin Books and Societe Civile Succession Guino (both of which are considered by many to be quite dubious decisions from the Ninth Circuit) have some potential relevance, but deal (especially the former) with more clearly published works, and neither purports to discuss the situation of a work from before 1909. David Nimmer argued ("An Odyssey Through Copyright's Vicarious Defenses," 1998, 73 N.Y.U. L. Rev. 162, p. 173) that Twin Books could arguably extend protection to even ancient works, although he says this conclusion is absurd. Anyway, since this issue has not been directly resolved, let me resolve it by making an adverse assumption (for us): let us assume that the work was protected by common law copyright from its creation, and that it remained unpublished and unprotected by common law copyright until at least 1986, if not 1999.
• Putting the mishegas surrounding foreign works from the 1800s out of the way, and continuing from our assumption, the work was first published either in 1986 (when it was recorded) or 1999 (when the score was published). Either way, the US copyright for that work would then last until 2048.
• For many reasons, the edition should have no copyright independent of the work.
• Conclusion: The work (and presumably edition) are copyrighted in the US until 2048.

In short, the scan should be OK (and our usual rule about new Urtext shouldn't apply in the first place, because this edition would not qualify for the 25-year right in Germany, as discussed). I am tagging it C/48/C.