Hi Robert:  Thanks for your response.  Your most recent inquiry gets
into a complex area of U.S. copyright law involving "derivative works".
All of my postings involve U.S. law, and I do not claim to be an
expert, nor do I hold out these postings as legal advice.

First, I'm not sure anyone would complain about Pete Wendling
rearranging anything by anyone!

As to your specific situation (i.e., re-releasing rolls "re-edited"
a longtime ago), there is no U.S. (federal) copyright protection for
performances in sound recordings "fixed" prior to February 15, 1972;
thus you commit no violation of U.S. federal copyright law by making
those old, potentially re-edited rolls, available.

State and common law remedies may be available to the holder of
copyrights in those performances, but state law claims can be difficult
to prosecute.   (One obstacle: the wronged party would have to bring
suit against the putative infringer in his home state.)  I'm not sure
who would hold the rights to these performances either.

Of course, for each song you'd reissue, you'd still need to check on
whether the COMPOSER of the song is owed mechanical royalties, if the
song has not passed into the public domain.  I would also note that if
this was done back when Reliance was a real concern, then it's possible
they had obtained licenses to make the changes anyway.

But ... if you were tinkering with a roll created and sold since
February 15, 1972, you could, in theory, face a claim for infringement
of the performance embodied in the sound recording.  It would not
matter whether the new performer played the notes himself (but
remembered them from the "original" performance), or actually punched
additional notes into the pre-existing paper roll.  Also, please note
that it is not necessary to register with the copyright office the
performance as embodied on the sound recording; merely "publishing" the
performance (by selling the roll or record to the public) is sufficient
for it to gain copyright protection.

However, proving performance infringement is sort of tough (this is the
confusing "derivative works" realm are referred to above).  The person
alleging infringement would have to show that the infringer had access
to the "original" performance, that the alleged  original performance
was sufficiently unique to warrant copyright protection in the first
instance, that the infringing performance is sufficiently similar to
the "original" performance, and that the similarities are in the
performance itself, rather than in the fact that both performances
share the same underlying song.

A similar situation arose in the U.S. a few years back: Roll Company
"B" issued a version of a song, Roll Company "A" issued the same song,
and it shared many of the same unique embellishments as Roll Company
"B's" version.  Further, it was known that "A" has access to "B's"
roll.

Roll Company "B" complained about infringement (but never sued; we
Americans never bring lawsuits!), "A" defended by saying that the
embellishments were standard sorts of things, and also that the
copyright was not registered (but as noted above, a performance
copyright need not be registered for its owner to enjoy copyright
protection).

My point on that case is the same as the one I made yesterday: why
couldn't Roll Company "A" have created its own unique version, without
reference to any of the embellishments in "B's" version?  While "B"
might have had a tough time proving performance infringement in a
civil trial (for the reasons stated above), I personally was never
comfortable with Company A's actions, nor did I understand why it
needed (or wanted) to use many of the same embellishments as on
"B's" roll.


Finally, I wish to respond to Robbie Rhodes' quip about why I think
there is a difference between Franz Liszt's variations on other
composer's compositions, and present day roll artists' augmenting
classic performance by the likes of Pete Wendling et al.

The difference in the two scenarios, and why Robbie's comparison breaks
down, is that the former constitutes written (or composed) music,
whereas the latter is dealing with "performances."  I don't think there
would be any merit to my covering, in a band, "Nobody Knows You When
You're Down and Out" in the same fashion as Eric Clapton does (even
assuming that I could, or that I play guitar!).

In the piano roll realm, I would not (even if it were legal) take Max
Morath's QRS performance of a Joplin Rag, add some of my own "tricks"
and then sell it as a Meliora Music Roll.  As we say in the law, this
is a "slippery slope"; it is easy to imagine some situations where this
sort of thing could be supported (i.e., Rudy Martin playing "in the
style of "..." on QRS rolls), but if taken far enough, it could lead to
some rather unpleasant developments.

I apologize for the length of this submission.

Respectfully,

Timothy Baxter
Atlanta, Georgia
Meliora Music Rolls

 [ Thanks, Tim, for a professional treatise on this confusing subject.
 [ My quip actually was a little piece of bait for someone to chew on,
 [ and you responded admirably !  :)   -- Robbie