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Are MIDI files protected by copyright?
May a user post a video containing audio derived from an unlicensed MIDI? Short for Musical Instrument Digital Interface, a MIDI file contains instructions (such as musical notation, pitch, volume, instrument type, etc.) that are utilized by a synthesizer to generate sound.
Requirements for Copyright
Under 17 U.S.C. § 102, copyright protection exists when two requirements are fulfilled: 1) a work is an “original work of authorship” and 2) the work is “fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Breaking it down further, copyright protection requires that: 1) a work of authorship exists, 2) the work is fixed, 3) and the work is original.
§ 102 provides eight categories of works of authorship, including sound recordings (category 7). Sound recordings are works that “result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.” A sound recording is fixed in a tangible medium of expression when “its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”
Originality requires an independent creation by the author possessing “some minimal degree of creativity.” Novelty is not required and the required creativity is “extremely low,” with the “vast majority of works mak[ing] the grade quite easily, as they possess some creative spark, 'no matter how crude, humble [sic] or obvious' it might be.” For example, a compilation consisting entirely of bare historical facts is eligible for copyright protection if the selection and arrangement of the facts are original.
Requirements for Copyright of Derivative Works
A derivative work is defined under 17 U.S.C. § 101 as “a work based upon one or more preexisting works, such as a . . . musical arrangement . . . sound recording . . . or any other form in which a work may be recast transformed or adapted,” adding that “a work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a 'derivative work'.” § 103 clarifies that works using preexisting material unlawfully do not qualify for copyright protection and that copyright in a derivative work “extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work.” Put more simply, “a derivative work consists of a contribution of original material to a pre-existing work so as to recast, transform [sic] or adapt the pre-existing work.”
Derivative works still have an originality requirement, but the originality is not undermined by the use of public domain material as long as something original is added. The required originality for a work based on public domain material is generally held to a “more than trivial” standard, allowing that “[n]o matter how poor the 'author's' addition, it is enough if it be his own.”
Application to MIDI Audio Files
A MIDI audio file could be described as a fixation, by way of encoding, of a series of sounds perceivable through the use of compatible hardware or software. It is likely then that a court would accept a MIDI to be a copyrightable sound file. Notably, some courts have previously treated MIDIs as digital sound recordings. MIDI's status as a fixation of sounds for copyright purposes is also evidenced in part by the Copyright Office's acceptance of .midi as an acceptable audio file type for registration of a musical work. (We are in the process of verifying a 1996 press release from the MIDI Manufacturers Association stating that the Copyright Office had verified MIDI's “status as a work of authorship copyrightable as a sound recording.”)
If a MIDI is a fixed work of authorship, the primary question is one of originality when creating a sound recording of a public domain musical work. For example, it is arguably questionable whether the use of software alone to translate a musical score into a MIDI file without any input or creative decisions (e.g. instrument types as opposed to file names) would contain more than a trivial amount of originality. A court could conceivably find such an automatically generated recording not a protected derivative work. On the other hand, a manually encoded MIDI or a captured performance in which the creator chooses instruments, their relative volumes, their pitches, and/or the timing of the composition could arguably succeed at overcoming the originality threshold. If that occurs, the MIDI would be a copyright protected derivative sound recording. In that case the MIDI creator would have exclusive rights to make edited copies of their own record, to use their record as a soundtrack, or to authorize someone else to do so.
Can I upload my video to the Wikimedia Commons if I derived the soundtrack from someone else's MIDI performance of public domain music?
Probably not. Without a free license to use the copyrighted recording of a third party creator, a video with an original derivative soundtrack cannot be posted on Wikimedia Commons. When an original sound recording is fixed, the creator of that recording has copyright in the recording itself, independent of the copyright of the song. The song itself can be in the public domain but still the original recording can be privately owned. If someone else uses or edits that original recording, they create a derivative work. As the original copyright owner has the exclusive right to make or allow derivative works, no amount of correction or blending of sources circumvents the need to license the original recording.
Wikimedia Commons requires all copyrighted material to be under free license. Because an original MIDI sound recording is likely a derivative work subject to copyright protection, all of the soundtrack's copyrighted sources must have been released under a license to perpetually allow republication, distribution, and commercial use (e.g. a CC0 license) to properly upload the work to Wikimedia Commons. For example, to upload a video soundtrack comprised of a blend of several different MIDIs to Wikimedia Commons, the contributor should either obtain a free license for each MIDI or otherwise demonstrate that the MIDI recording, not the song, is in the public domain.
What about fair use?
Wikimedia Commons does not accept fair use material because the project exists to provide media files usable by anyone, anywhere, for any purpose. What constitutes a fair use varies from country to country, including some countries that deny fair use altogether, which violates the requirement that media be usable by anyone anywhere. Even if fair use were universal and uniform, it is a contextual classification, limiting the purposes for which the media can be used. Simply put, the Wikimedia Commons community has decided that unlicensed fair use material is incompatible with the purpose and scope of Wikimedia Commons.
Some other Wikimedia projects, such as English Wikipedia, do allow fair use material, but such “non-free” material is held to a purposefully stricter standard than U.S. Copyright law. If material does pass the U.S. fair use tests (which take into account purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the used portion, and the effect of the use on the copyrighted work's value and market potential), it still must be submitted to the relevant Wikimedia project with a detailed fair use rationale, which is reviewed according to Wikipedia's non-free content criteria.
- Wikimedia Commons - Village pump/Archive/2012/05, https://commons.wikimedia.org/wiki/Commons:Village_pump/Archive/2012/05#Copyrights_on_MIDI.3F (as of May 24, 2012, 19:46 GMT).
- Copyright Act - Subject Matter of Copyright: In General, 17 U.S.C. § 102.
- Copyright Act - Definitions, 17 U.S.C. § 101.
- Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991) (citing 1 M. Nimmer & D. Nimmer, Copyright §§ 2.01[A], [B] (1990)).
- Id. (quoting 1 M. Nimmer & D. Nimmer, Copyright § 1.08 [C]  (1990)).
- Id. at 349 (citing Patry, Copyright in Compilations of Facts (or Why the "White Pages" Are Not Copyrightable),12 Com. & Law 37, 64 (Dec, 1990)).
- Copyright Act - Definitions, 17. U.S.C. § 101.
- Copyright Act - Subject Matter of Copyright: Compilations and Derivative Works, 17 U.S.C. § 103.
- 1 M. Nimmer & D. Nimmer, Copyright § 3.03 [A] (2011).
- Kamar Intern., Inc. v. Russ Berrie and Co., 657 F.2d 1059, 1061 (9th Cir. 1981).
- Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 103 (2d Cir. 1951).
- See, e.g., Glover v. Austin, 289 Fed.Appx. 430, 433 (2d Cir. 2008) (MIDI treated as digital sound recording for purposes of establishing date of song creation in copyright infringement case); Kernal Records Oy v. Mosley, 794 F.Supp.2d 1355 (S.D.Fla. 2011) (SID files, similar in function to MIDIs, treated as sound recordings in case dismissed by summary judgment because plaintiff failed to register copyright before suing for infringement).
- U.S. Copyright Office, http://www.copyright.gov/eco/help-file-types.html (as of May 23, 2012, 20:10 GMT).
- MIDI Manufacturers Association, http://www.midi.org/aboutus/news/archive.php (as of May 25, 2012, 22:59 GMT)
- Copyright Act – Exclusive Rights in Copyrighted Works, 17 U.S.C. § 106.
- Acceptable “free licenses”: http://commons.wikimedia.org/wiki/Commons:Licensing#Acceptable_licenses (as of May 22, 2012, 17:32 GMT).
- Wikimedia Commons, http://commons.wikimedia.org/wiki/Commons:Derivative_works (as of May 22, 2012, 18:40 GMT).
- Copyright Act – Subject Matter of Copyright: Compilations and Derivative Works, 17 U.S.C. § 103.
- Creative Commons, http://creativecommons.org/about/cc0 (as of May 22, 2012, 19:02 GMT).
- Wikimedia Commons, http://commons.wikimedia.org/wiki/Commons:Fair_use (as of May 22, 2012, 19:16 GMT).
- Wikipedia, http://en.wikipedia.org/wiki/Wikipedia:Non-free_content (as of May 22, 2012, 19:41 GMT).
- Copyright Act – Limitations on Exclusive Rights: Fair Use, 17 U.S.C. § 107.
- Wikipedia, http://en.wikipedia.org/wiki/Wikipedia:Non-free_media_rationale_guideline (as of May 22, 2012, 19:56 GMT).