The public domain is confusing. Saying that 'if something is out of copyright, then it's public domain,' is a succinct way of putting it, but often it's also highly misleading. Copyright terms vary by country and by the specific rights associated with a piece (e.g., the musical work itself versus a particular recording of a work). But this is no guide for navigating these intricacies. I gloss over them merely to get to the next layer of confusion concerning the public domain, that which involves genre.
During my first year or so of working in music publishing, I noticed something I hadn't much encountered before: people have a funny habit of conflating art music, aka classical music, with the public domain. Now, most of the people I assist are not musicians nor do they have strong musical expertise, especially when it comes to art music. Instead, they work for production companies on TV, film, and commercials; a few of them are music supervisors. Taken as a group, their level of copyright awareness is inconsistent, but even for the ones who are relatively 'in the know,' classical music tends to fall into a weird blind spot.
An illustrative example: I got a frantic phone call from a film producer who had used a somewhat randomly selected piece as a temporary track during the early stages of a project. As often happens, the temp track ended up becoming a key structural element of the scene and consequently the producer was on the hunt to license it for the production's final cut. Once she held up her cellphone to her computer speakers so I could put a name to the work she couldn't identify (it was Prokofiev's 'Dance of the Knights' from Romeo and Juliet), I informed her that there was nothing further I could do because the piece, while having recently passed into the public domain in Canada, was under copyright everywhere else. So, in the unlikely event that she could find a recording (which carries its own separate copyright) to license, her film would still be limited to Canada unless she secured an international licence from Prokofiev's current rights-holders.
But, asked the producer, didn't I have public domain recordings of classical music?! As it turned out, while the rights' situation was a bit sticky to comprehend, the first stumbling block was understanding that there's lots of classical music still under various layers of copyright. This is a common myth that never seems to go away no matter how often it's dispelled, and I think a few things are involved in keeping it going beyond simple misinformation and misunderstanding regarding copyright, although that's undoubtedly a huge factor, too.
First, some people think there is no new classical music being written anymore; it's a dead tradition, because, well, as one Yahoo! Answers poster stated, all the composers are dead. Nevermind that copyright continues for decades after a creator dies, Steve Reich, R. Murray Schafer, Linda Caitlin Smith and many others will be surprised to learn of this, I'm sure.
Second, classical music is quite foreign to many people and as a result of their unfamiliarity with the range of aesthetics found within this tradition, most are not able to distinguish a 17th century concerto grosso from a 20th century piano quintet. There's some sort of reduction that goes on whereby hundreds of years and dozens of genres of Western art music are pressed into one small compartment. And since much of the music in that compartment is already in the public domain, all of the rest of it must be, too, right?
Third, certain pieces -- such as 'Dance of the Knights' -- are so thoroughly lodged in public consciousness as result of frequent replaying that their sheer ubiquity often causes them to be mistaken as public domain. This doesn't happen only to classical music -- jazz and pop standards are rife with well-known songs such as 'Mack the Knife,' 'They Can't Take That Away from Me' and 'Moon River.' Seemingly 'traditional' songs play tricks of their own as well. Every year around this time, for example, I have to explain to would-be licensees that the music and lyrics of 'White Christmas' and 'Let It Snow' are still very much under copyright.
We could interpret this phenomenon as resulting not only from a piece acquiring a socially pervasive status, but also from it no being longer associated with a specific performer (if it ever was, as is the case with a good deal of more recent classical music). A work being covered, re-arranged, and excerpted many times over can further contribute to mislabelling something as public domain. In both cases, though, there is a feeling of cultural ownership that copyright doesn't or shouldn't apply or that a work is regarded as open to appropriation by anyone, even when, legally, it isn't.
On the other side, composers, arrangers, and labels often appropriate genuine public domain works and put their own copyright on them. In many cases – a recording, an arrangement for different instruments – this is perfectly legitimate. In other cases – disguising an unaltered public domain work with a new title and attempting to claim full original authorship in order to receive a higher royalty payment – it is not. Industry groups such as Access Copyright have also been criticised for luring people into paying licence fees for public domains works, but these are not high-profile goings-on so it's unlikely they've done much to muddle the broader issue, even if they have eroded appreciation for and preservation of the public domain itself.
The confusion is likely never to be resolved. One look at the plethora of Yahoo! Answers posts regarding classical music and the public domain can attest to this. And there's lengthy historical precedence, too. In an ad in a 1927 issue of The P.R. Gazette a publisher 'beg[s] to apologise' for an 'inadvertent infringement of the copyright' of another publisher by including a burlesque on Verdi's 'March' from Aida in a book of cinema music; the offending burlesque was then withdrawn. To be sure, if you erred in your public domain calculation, there's a publisher out there who will let you know.
I'm no connoisseur of advertising, but there's something to be said for the insight one can gain about an era by looking at its ads. When was the last time you saw an ad for an album? Depending on your media choices, probably pretty recently and perhaps quite often, too. When was the last time you saw an ad for sheet music? For that matter, have you ever seen an for sheet music? If you're a classical or jazz musician or a music student, you've likely noticed sheet music advertised as one of many goods sold, for example, by instrument retailers, but when have you seen ads solely for community song books, theme catalogues, or a new series by a contemporary composer?
Examples of all of these are found in our copy of The P.R. Gazette. Most of these ads weren't intended for the general public but were instead aimed at professional musicians (mainly performers, but a couple ads offered instructional materials). Remember that we're still in the 1920s here and working musicians then were employed in strikingly different ways than they are today. Live musicians performed in cafes, restaurants, dance halls, community events, cabarets, and, of course, provided the musical accompaniment for films. The diversity of venues and activities a musician could find themselves accompanying required an equally diverse range of repertoire from which to draw, not only in terms of genre or style, but also instrumentation. The cryptic and non-standardised acronyms beside the price lists in these ads reflect the latter: F.O. = Full Orchestra; S.O. = Small Orchestra; P.C. = Piano Conductor; E.P. = Extra Piano or Extra Part; but traditional ensemble names such as “piano trio” and “string quartet” popped up as well.
These ads bombard us with the titles and composers of “popular love themes” and “famous valses.” Some ads rely on the familiarity of their repertoire, while others point to the functionality of the pieces with utilitarian descriptive titles. The former category has a range of music from classical, public domain pieces (Brahms, Handel, Haydn), newer classical works still under copyright (From the New World Symphony by Dvorak, The Flight of the Bumble Bee by Rimsky-Korsakov), modern “musical comedies” or “musical plays” (The Blue Train, The Vagabond King), specific dance genres (waltzes, one-steps, fox trots; sometimes these were dance arrangements of extant, familiar pieces), and folk or popular tunes from the public domain (“Barbara Allen,” “Auld Lang Syne”).
The latter category of functional, utilitarian pieces is comprised of ads intended for cinema musicians. While this group had a need for familiar classical and popular music, the atmospheric, narrative, and dramatic requirements of film called for music that was more customised to the medium and could also be quickly adapted to fit a variety of different films. So, in the Film Play Music Series and Cinema Incidentals from Bosworth & Co. (see image at top of post), we can quickly match film scenes to music by means of their evocative titles such as “Storm Music,” “Hurry,” and “A Passionate Episode.” J.R. LaFleur & Son go a step further by also providing keywords; “Misterioso, No. 4” is described as “suspense, foreboding, 'spooky'[sic]” while “Destruction” is “ruin, demolition, collapse.” Other ads, finally, stick to an old-fashioned approach by providing a summary of each suite of cinema music. (Higher resolution image here.)
And so do we have here the beginnings of the production music industry? I read an account about the very early days of film music and publishing clerk who invented “cue sheets” as a means to better categorise and describe classical, public domain works, thus greatly assisting the musicians and increasing sales of sheet music (described in greater detail here). But as the repertoire for film music grew beyond classical music and the public domain, it made sense to retain something of this keyword or music description approach, especially since musicians would not be familiar with the content of new works (having never had the opportunity to hear them before). Film composer name recognition might have been involved, too, but I have no idea who, if any, of the sought-after ones might have been at that time – certainly not all of the dozens of contemporary composers named in these ads.
Anyway, I have the impression that there's something of a common belief these days that production/stock/canned music was born with the creation of Muzak (both the company and its products), but this early, pragmatic approach to film music would seem to put something of a hole through that idea. Will it hold up under closer scrutiny? We'll look for more answers in the weeks to come.