Harry Fox Agency claims copyright on Strauss

Stephanie sez, "Somtow Sucharitkul, a notable director, was informed that posting footage of himself, conducting Strauss' Radetzky March was a violation of Harry Fox's supposed copyright on that piece. That 164-year-old piece: 'Perhaps HFA controls the rights to a modern arrangement of this piece, such as a school band version or something, but this is no modern adaptation. It's the original, and Johann Strauss Sr's copyright expired a century ago. Do let me know if I can be of assistance (for instance, I could perhaps get the Austrian Embassy to produce a copy of Strauss's death certificate?)'"

Somtow is also a notable sf writer, who's written under both SP Somtow and Somtow Sucharitkul. Met him once at a Worldcon. Nice guy. Good writer. Talented polymath. World-class snarker!

I sent them this email


  1. Sir Arthur Conan Doyle’s heirs still exact tributes from film producers for the use of Sherlock Holmes, despite much of his works being in the public domain.

    This absurdity needs to stop. Every copyright claim needs to be met with a [citation needed or GTFO] sign.

    1. The Doyle stuff is very complicated. The heirs seem to claim rights on him as a character, and his works’ copyright expired (when they did) in different countries at different times.

      A New York Times piece that was generally sensible and interesting in 2010 (see here) nevertheless talks about Sherlock Holmes as a concept protected under copyright, which it (or he) is not. The UK copyright expired no later than 1980 on all his works, and the American copyrights that remain (confusing since some pre-1923 stuff was published later in the U.S. and thus falls under different rules, many sighs) apparently won’t until 2023.

      However, it seems that the folks making movies and films pay fees to avoid nuisance lawsuits that could drag on for years and settle on fine and ridiculous points of law. Whether or not you think Siegel and Schuster were cheated out of Superman proceeds at various points, the fact that suits related to their creation persisted for decade upon decade should give us pause. (I guess the unfairness towards the creators is one consideration here for why they continued to be extended and revived.)

      1. Which is why I support the concept that copyright shouldn’t be transferable, not to corporations and not to heirs or estates. If copyright is to incentivize new works in order “to promote the progress…”, then dead people don’t need copyrights.

        1. I agree, and further, the US Constitution only talks about creators being given exclusive rights to their creations.  It doesn’t say anything about their great-grandchildren.  I would argue that, as such, current copyright law exceeds the constitutional powers granted to Congress.

        2. That would certainly eliminate many of the problems. Perhaps not transferred but licensed.

          Oh wait, wouldn’t that incentivise the wholesale murder of writers?

          Methinks I have my NNWM plot…

          1. For the children, no, but in aggregate much more… it expands the pool to include anyone who very much wants to profit from the work without paying royalties.

            Oooh… and there’s a title: “The Derivatives.” Or maybe “The Derivator.”

            Ah… “Derivicide.”

        3. The thing is that only addresses the problem of these big ticket properties, and it would destroy the models that smaller artists use to survive.

          The vast majority of artists support themselves through the creation of work for hire through much of their career. Illustrations, graphic design, ad copy and work on bigger projects.

          Most of these artists would be in no position to legally defend the copyright of their work, it’s only by giving those rights to the company purchasing it that the work is protected.

        4. Dead people do need copyright; I can’t remember who it was, but I recall a story about a man who was diagnosed with cancer and told he had two years to live. In order to provide for his family, he wrote several novels in the space of that two years (famous novels, too – I just can’t remember which ones). If his children wouldn’t have been able to gain from his copyright after his death, those works never would have been written.

          Copyright also needs to be able to transfer to corporations, especially for any collaborative works-for-hire (TV shows, etc.), or things will becomes an even bigger mess than they are now – if you had to get every single person who worked on a movie to sign off on every single sequel or remake ever made it’d never happen. Also, if someone wants to sell their works to a corp, they’ll do it, copyright transfer or no; it’ll just be done as a “perpetual exclusive license” or somesuch – exactly the same as it is now, but with longer contracts and more lawyers involved.

          What we NEED is a reasonable and FIXED length of time for copyright expiration; no “lifetime + X” or other crap like that; no changes allowed to the length of copyright after the publication; you look at publication date, add a few years, and that’s where copyright ends. Period.

          1.  I think you may be thinking of Ulysses Grant’s memoirs. Former President and Civil War General Grant lost most of his money in a early Ponzi scheme, and more or less raced the cancer that was killing him to finish the memoirs. Mark Twain published them at what was an extremely high royalty rate shortly after Grant’s death, netting his family a very sizable return. http://en.wikipedia.org/wiki/Personal_Memoirs_of_Ulysses_S._Grant

          2. I can’t remember who it was, but I recall a story about a man who was diagnosed with cancer and told he had two years to live. In order to provide for his family, he wrote several novels in the space of that two years (famous novels, too – I just can’t remember which ones).

            Anthony Burgess claimed he was misdiagnosed with an inoperable brain tumour, and given a year to live; he wrote three novels very quickly to support his wife, including “A Clockwork Orange”.  Whatever the truth of his story [and he wasn’t the most reliable autobiographer], he outlived his wife by nearly thirty years.

          3. That’s funny – I thought that it was Burgess and Clockwork Orange, but Wikipedia doesn’t mention it under either of those articles, so I thought I was remembering wrong. Thanks!

        5. If you were a publisher and couldn’t acquire copyrights from authors, you’d not only have to take the risk on publishing the book, but also the risk that if you successfully printed and marketed the book, the author might well go and also license the copyright to another publishing house and close you out of the deal.

          And if you couldn’t acquire copyrights that lasted past the death of an author, it certainly wouldn’t make sense for you to acquire a book from an author who’s old or sick, even though it might be a good book and they might want the advance and early royalty money for themself (as opposed to wanting a legacy for their kids.)  So for instance, “And Ladies Of The Club” was a best-seller a few years ago, a first novel by an author in her 80s.  It was first published by a university press doing a small library print run, and then it got noticed and picked up by a major publishing house and Oprah, and was widely read by a lot of people who’d never have seen it if the publisher were limited by copyright-ends-at-death.

          On the other hand, the current version of “Death+95 years” (or really “95 years after Disney goes bankrupt, if  that ever happens”) is excessive, especially since “death” is rather more flexibly defined for authors who are corporations.

          1. Publishers can negotiate exclusive contracts with authors for the publishing of their works and enforce those contracts in court. You don’t need a copyright to secure that exclusivity. Considering the percent of profits that publishers have been making, the risk should be acceptable.

            If you felt the need to address the issue of publishers not publishing works for fear that an aging author might die soon, you could allow for an estate of a deceased author to retain a contract that was entered into prior to the death of the author, limited to the short number of years to which copyright duration would also be limited.

            This is the part that I didn’t mention in my original post – I said copyrights shouldn’t be transferable, but I didn’t mention that I also think that copyrights should expire within a decent amount of time (maybe 7 years?). If original copyright lasted for 14 years during a time when it could take years to get works published and printed and distributed to a large enough market to make a profit, modern technology that makes it much easier and faster to reach the same market now should likewise make the duration shorter.

    2. It doesn’t matter for this purpose that Doyle’s stories are public domain, because filmmakers are not producing copies of those stories (these days, they’re so far removed from any of those stories that I’d barely be prepared to claim they were derivative works).

      Nevertheless, as long as there continue to be detective stories marketed under the name “Sherlock Holmes,” that name will be protected as a trademark.

  2. Seems like every situation needs to be worked differently.

    Many years ago, when good-quality color printers for computers were very expensive, it was common to go get prints at specialty stores.  For a while, a number of pharmacy chains actually were the best bang for the buck; they had new printers and cheap prices.

    I took in some portraits I’d done of a colleague.  (OK, I admit it was just an an excuse to get a lovely young woman to remove most of her clothes but they were to be a present for her husband and I was more than willing to oblige.)  As I was printing, the kid behind the counter said “Sir, those look like professional photographs.”  I quite cheerily said “Thank you” and went about my business.  He looked confused and disappeared.

    A while later, the manager comes up and says “Sir, you can’t print professional photographs without the permission of the photographer.  I’m afraid you’ll have to stop.”  My reply: “OK, I’ll stop.  In the meantime, could you fetch me the form you want the photographer to fill out to give me permission for when I come back?”  Manager looked confused but left to go look for the form.  It took him a while but I knew that such a thing had to exist.  I was dealing with a bureaucracy; there had to be a form for everything.

    By the time he came back with the form, I was finished printing.  I took the form from him and thanked him very much.  He left.  I then filled out the form, signing my own name as the photographer holding the rights to the photos and approached the kid working the photo counter.  “The manager said that as long as you had this form, it was OK to sell me the prints.  How much do I owe you?”

    He just rang up the sale and I was walking out the door by the time the manager had come back yet again to tell me that I couldn’t print my own photographs.

    Sometimes, as in the instant case, a little snark and sneaking around the edges of established procedures will do a wonderful job of so completely distracting silly people that they stay out of your way.  It’s always worth a try.  :-)

  3. Harry? Wow, it’s been too long.
    So how’s that 13 year-old litigious action plan against everyone who simply wants to know what lyrics are to a particular song workin’ out for ya?

  4. I cut music using a stock library for a TV show once. The music company pulled almost all of their classical cuts at one point because in one country the copyright law changed to cover works that were not protected in most countries. There’s also the (P) protection on many modern works that covers performance rights. Even if the composition is PD, there may be contracts with the musicians that requires royalties for TV broadcast. It’s very complicated. That’s why smart people use stock music companies that handle all the licensing issues for them.

    1. Well, in the US at least, each performance of a work gains its own copyright. It doesn’t re-copyright the underlying work (other people can still freely perform it), but it does make it so that particular performance is granted copyright protection.

      1. Also, sheet music has copyright protection.  So, for instance, Bach has been dead long enough for copyrights to expire, but G.Schirmer company’s layout of a given Bach piece typically is protected by copyright, so you can’t just buy one set and Xerox enough copies for your whole choir to use.

        On the other hand, ASCAP rules might or might not apply to your performance of the piece?

        1. It’s doubtful that even the sheet music itself is copyrightable — a minimum level of creativity is required. It’s a pretty low threshold to get over, but I don’t think it’s a winning argument. (The list of names and telephone numbers in a phone book, for example, lacks the requisite creative spark for copyright.)

          Your theoretical Bach arrangement will contain zero musical choices on the part of the sheet music company.  They’ll go by Bach’s score exactly, and they will transcribe it using standard musical notation.  The pages will break at logical points….  I’m really not seeing anyway a sheet music company could get copyright.

          Now they might require that people agree to certain restrictions before selling them sheet music — e.g. you promise not to xerox twenty million copies — but that’s contract, not copyright.  I’m sure sheet music companies splash all kinds of copyright notices on their stuff, but if that was all they had I’d wager they’d lose if someone challenged them.

          Edit: Just to be clear, I’m talking about sheet music for public domain works.

  5. So… how long are the “heirs” of artists supposed to get a free ride off their dead relative’s  creativity anyway?  And where exactly do these agencies (scumbag, blood-sucking, losers who never created anything in their lives, business people), come in to it? 

  6. Well, this would be fine and dandy if the “Six Strikes and You’re Out” CCI were to have the Harry Fox Agency’s ISP disconnect them from the internet and blacklist them with all the major ISPs forever for copyfraud the way they plan to do to consumers for allegations that their assigned IP is accused of copyright violation.

  7. Cory, unfortunately, Harry Fox is probably the proper rights holder and by copyright, this is a valid complaint. WTF? I hear you say, let me explain.

    Music is conducted from music sheets. You know, the paper with the notes on it. Now in their time, composers like Mozart, Bach, Strauss etc. wrote down their music on sheets so that the music shall be conducted by an appropriate set of musicians. Now at the time copyright wasn’t in existence, or wasn’t resembling anything like what it is today.

    At the introduction of semi-modern copyright, this right did not extend retroactively. So Strauss hairs could not claim copyright on Strauss music. Now clearly, his music is something copyrightable right? Well, as it turns out, if you transcribed the music sheets from plays, recordings, incomplete records and what have you, a publisher of music sheets could gain copyright to *his* transcription. He just couldn’t literally copy the original sheets that Strauss wrote.

    So that is how, classic music which should have gone long out of copyright, is still copyrighted, by anybody else than the direct hairs or authors themselves, but by the equivalent of the MAFIAA in music sheet form.

    Now you might ask, how the heck do I know this right? I’m just a clueless ranter railing against the stupidity of copyright. You see, I had a very unfortunate run-in with businesses whom I used to perform work for, that where deeply engaged in this kind of fraud. I’m happy to say I broke this engagement over 5 years ago. However, during my brief time there, I could stare into the cthulhan depths of copyright, which imbued me with a deep and lasting desire to rid the world of this evil. And that company also had dealings with the absurd music sheet recording industry.

    So there, please stop apologizing for copyright and join the fight on the right side. Get rid of it, altogether, it’s broken beyond repair.

    1. Incorrect; the copyright on the sheet music only covers copying those particular versions of the sheet music itself. The music being played is NOT covered by any copyright on the sheets. If this company was claiming anything else, they were committing fraud.

      1. Unfortunately, no. There is a little known clause defining the “right to perform”. In regards to sheet music for instance, if a church choir wants to perform a particular piece of music, from sheets, which some music sheet mafiaa owns, they have to obtain the license to do so for each member of the choir from said music sheet mafiaa.

        You can find this right to perform in other contexts as well. For instance music playing in bars and clubs, or movies played back in cinemas. Obtaining a copy of the work does not grant you the permission to perform this publicly.

        Copyright, does not stop at the literal copying of the works. It also covers the *use* of those sheets. The right to perform is a license, and the license has its legal standing in copyright. The license to perform has to be negotiated separately with the holder of the copyright.

        There are companies for instance which specialize in the aggregation of rights to evangelical sheet music in regards to performing licenses that provide a “service” to churches where a church becomes a subscriber to the service and the fees for a license are automatically calculated from the number of choir members and church attendees and then the sheet music is DRM “protected” to prevent you from reproduction of the sheets after your performance has passed. No, this is not a joke. I’ve been in a capacity to implement part of such a system. It’s sickening.

        Yes I didn’t know this either before somebody explained this stupefying fact to me. Why did they explain it? Because I had to understand in order to program the system to do it. So now you know. You can be liable for copyright infringement even if you didn’t distsribute the works. You can be liable just by making other people experience a performance of those works.

          1. That is correct, in theory. In practice sheet music companies do not have the burden of proof. If they think somebody performed music from sheets they hold the rights to they can go to court and ask the court for discovery. If they’re right, then the victim has to pay damages. If they’re wrong, the defendant has no legal way to recover the legal costs such as attorneys fees from the sheet music company, it’s all just “oops, sorry, no harm right? So long!”.

            The legal system is rigged in favor of rights holders. They can do pretty much whatever they want and won’t have to bear any consequence whatsoever of misbehaving.

        1. As far as I can tell, you’re still talking about stuff some company told you that isn’t actually upheld by the law; I searched for anything online to support your claims, and found nothing that supports them, and in fact several places that would refute them (music performed in church never has to pay royalties, for example).  So, unless you can find some legal information that supports your claims, I’m of the opinion that this company you worked with was Making Shit Up™.

          1. You fail at using wikipedia? http://en.wikipedia.org/wiki/Performing_rights

            I realize you might familiar not be performance rights if you don’t operate a bar, cinema are or a musician. But performance rights exist, they’re part of copyright, they cover sheet music and if you break them, you’re very much in violation of copyright. That’s what the entire sheet music mafia is built on. Claiming copyright for music that was written in some cases over a thousand years ago.

          2. Yes, I am familiar with the concept of performance rights – and your link explicitly states that it applies to the copyright holder of the song NOT the sheet music. So, who has wikipedia fail?

          3. The Rizz is correct here.  Creating sheet music for public domain works does not give you performance rights, even if they are using your sheet music.  Anyone who says otherwise is a liar and a cheat.  I don’t doubt that you met someone who was very good at selectively citing statutes and case law to the contrary, but the devil can quote scripture for his own purposes and, well, copyright law has a lot more room for the devil.

            I remember a supreme court case where the plaintiff took public domain paintings — nothing well known, just old stuff — and created reproductions, which he then proceeded to sell.  Another guy did the same thing, and guy number one sued.  The court ruled for the defendant, for the simple reason that the Plaintiff’s creation of derivative works based on the public domain painting didn’t give him any rights over it.  It was still public domain, and the defendant was entitled to do the same thing.

            If I had all the time in world, I’d love to get all the relevant law in one place for you, but I’m afraid I don’t.  So all I have to say is that you’ve had the wool pulled over your eyes — public domain music is public domain music.  Since it’s been stated pretty clearly that this is in fact Strauss’s arrangement, Harry Fox doesn’t have a leg to stand on here.

  8. The Harry Fox agency in conjunction with the National Music Publishers Association and the Music Publishers Association has also gone after and shut down the Online Guitar Archive (OLGA) – a website that collects by-ear transcriptions of music for guitar and bass. The net result has been that there is now a proliferation of websites that provide this information.

    You would think that letting people transcribe music they hear would actually push up sales of recorded music but the record and music industry mafia seem to think otherwise.

    1. Go check out the prices on sheet music for the same songs and you’ll get some idea of why they do this.

      I agree, it’s stupid — OLGA was pretty much entirely tablature for people who don’t read sheet music.  But I’d bet that’s the reason.

  9. I quote herewith Harry Fox’s response to me:

    The claim was released today. We apologize for the mistaken rHi Somtow:The claim was released today. We apologize for the mistaken reinstatement yesterday. Our entire staff is working remotely this week due to the continuing power outage caused by Hurricane Sandy in NYC. We hope to return to our offices on Monday.Please be aware that HFA does not sue YouTube users. We are administrators of thousands of music publishers’ direct license agreements with YouTube. We only become involved in these disputes when YouTube notifies us of what they have identified as a non-compliant use one of these publishers works.While many songs fall into the public domain, arrangers frequently copyright their arrangements of these songs and register them with HFA. For example, Jimi Hendrix’s version of the Star Spangled Banner is copyrighted. It was YouTube who identified that this was LEOPOLD WENINGER’s arrangement of RADETZKY – MARSCH, OP. 228. We continue to work with YouTube to reduce these incorrect identifications.HFA

    and my response to HFA:

    Dear Sirs: Thank you so much for the fast response. This is a problem that afflicts classical musicians all the time; I have had dozens of uploads so misidentified, but in each case the claimant immediately released its claim when I informed them. HFA’s is the first case I ever experienced (or heard of) of an obviously erroneous claim being reinstated. Presumably if youtube’s algorithm is using “melody match” as its main method, Mr. Weninger may be getting quite a lot of false attributions as this piece is frequently uploaded to youtube!The Hendrix version of The Star Spangled Banner is so radically different from the original as to clearly constitute a new composition in the mind of any perceptive listener. I sincerely hope that people posting clips of their versions of national anthem aren’t receiving claims from Mr. Hendrix’s estate!I looked up Leopold Weninger and I see that he died in 1940. As such, even if we had used his arrangement, it would have been public domain in Thailand, where the performance took place (copyright term life+50) – and also in Austria, where the music originated (life+70). It would I think only have been an infringement in the US. I listened to a recording identified as the Weninger version on youtube (okay, not the most reliable source) and to my ear the only real difference between it and earlier editions is the addition of two bars of solo snare drum at the beginning. This is hardly a Jimi Hendrix type of situation!I do appreciate your explanation of how this came about. But as you know, classical music as played by symphony orchestras rarely gets “arranged” and so the criteria used for song arrangements don’t really apply. I wish youtube would find a different algorithm or find a way of scrutinizing identifiably classical music uploads using a different system.I do hope everyone at HFA is coming through the storm and my thoughts are with all of you.

    Best wishes


    1. I’d like to know what, exactly, HFA is doing “with YouTube to reduce these incorrect identifications.” This sounds like lip service to me. They have no incentive to reduce the error rate. They can carry on as usual with no penalty other than rare instances of bad press like this. You could sue them under 17 USC 512(f), but only if you have proof that they were deliberately lying, and you could only recover actual damages. They essentially publicly accused you of copyright infringement, and put your YouTube account at risk, and made you have to prove your innocence. I think it’s only fair to demand that they prove they are doing something about it beyond just issuing an apology.

      HFA also owes you a complete explanation, or they’ve only given half an apology. How did the reinstatement happen? They try to blame YouTube for it, but that only works for the initial misidentification, and even then, it’s not ideal. Once informed of their error via your counterclaim, the ball was in their court. Someone at HFA manually chose to reinstate the claim despite your counterclaim. They can’t say it was YouTube’s fault! They need to be forthcoming about how it happened and what they’re doing to prevent it from happening again.

  10. Somtow’s also a composer. I have his ballet Kaki, and I’ve seen other pieces available as well.

    And he acted, at least I recall he was in his movie, THE LAUGHING DEAD, that he showed at Mega City Comics in Virginia around 1989 — while we sat around commenting on it like the (as-yet unknown to us) Mystery Science Theater 3000. A splendid time was had by me, at the very least. Watching writer, fan, and all-round stand-up guy Ed Bryant’s head get run over — in the movie — was a bonus.

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