Musical works add another layer of complexity to an already complex issue of determining when copyrights of works expire. U.S. copyright law changed several times in the 20th century, extending the term of copyright for protected works and generally falling in line with international conventions. When determining if a musical work has fallen into the public domain, you could face three copyrights for the piece: the music, the lyrics and the arrangement.
A musical work, its lyrics and its arrangement can be copyrighted at one time, but there are many instances when that is not the case. The website PD Info, writing on identifying music in the public domain, notes that an old tune, “Aura Lee,” has entered the public domain, but the lyrics by which the tune is known today, “Love Me Tender” as sung by Elvis Presley, will remain under copyright for years. When you’re attempting to determine if copyright has expired for a musical work, you must first discover if the complete work is covered by one copyright date, or if it carries separate dates for music, lyrics and arrangement.
Published Before 1923
Any work published or bearing a copyright in the United States before 1923 is in the public domain. These works are covered under the 1909 Copyright Act that extended copyright protection for 28 years from the
date of publication or author's claim of copyright, with an extension available for another 28 years. Works, created before 1923, including music and lyrics, but not copyrighted or published until later, may still be protected by copyright. One of the more famous cases of this situation is the song “Happy Birthday to You.” The tune was created in 1893 for the song “Good Morning to All.” The lyrics for “Happy Birthday” were first published in a songbook in 1924, though the lyrics were likely around before that time. The owners of the copyright for “Good Morning to All” through a legal finding were able to establish a new copyright for “Happy Birthday to You” in 1934 that would have lasted for 28 years under the copyright law in effect at that time, with an extension available for another 28 years. The Copyright Act of 1976 extended copyright protection for all works then in their second term to 47 years, and the 1998 Copyright Term Extension Act added another 20 years of protection. As a result, “Happy Birthday to You” remains under copyright until at least 2030, unless there are more changes to the copyright act. You can still sing “Happy Birthday” to your kids at their birthday party, but if a restaurant wait staff sings “Happy Birthday” to a customer, the restaurant owner will have to pay royalties on the song.