Is this excerpt from a classical piece copyrighted?

Question

I am writing a progressive rock song of around 10 minutes in length. For the first two minutes, I play Shostakovich's Fugue in A Major. This piece is not in public domain, so I know I have to make some changes in order for it to be considered different. So, to change it, I have changed the instrument from piano to electric piano, and added bass guitar and drums.

I'm aware that there is somewhat of a fuzzy line between what can be copyright claimed and what is safe. So, to stay on the safe side, what would I have to do to prevent myself from being copyright claimed?

I could relegate it to the background, and have sound effects be the main sound for the period of time that I have this excerpt in the music, but I would only be open to this if that was the absolute only way I could get away with it.

My main source of concern is due to the recent influx in copyright claims over songs that share a few notes in common, but seeing as this is a classical piece and not a pop song written by people who want money from baseless claims, I'm under the impression that I'd have a little wiggle room with my interpretation of the piece.

Answer 1

As the question says the "Fugue in A Major" by Shostakovich is not in the public domain. The work was published in 1950, and so would not be PD under US law, and Shostakovich died in 1975, and so his works would not be PD in countries using a life+50, life+70, or longer term.

Therefore, simply "making some changes" would be the creation of a derivative work and would be copyright infringement in and of itself, even if that work was not published or distributed.

If a relatively short segment of the fuge was used, it might be considered a "fair use" under US copyright law, or perhaps a "fair dealing " in the laws of those countries that recognize this exception to copyright. But that is a very fact-intensive determination; it depends on the amount used, the manner and purpose for which it is used, and the harm, if any, to the market for the original work. One can never be absolutely sure that a use is a fair use until a court rules that it is. A two minute excerpt is fairly substantial, and might well not be held to be a fair use.

Of course, you could seek permission from the Shostakovich estate (or whoever owns the copyright on the fugue). They might or might not grant it, and might or might not demand a fee.

(As another answers mentions, there may be some question if the works of Shostakovich are protected by copyright under US law.)

Answer 2

If the work were protected by copyright, your would have only two options. The first is to obtain a license to modify the work; it is your duty to find the licensing agents. The other is to hope to just do it and hope to get away with it under a fair use analysis. The latter option is extremely risky, because the courts are extremely protective of musical works – millions in damages have been awarded for 1 second's worth of infringement.

The third option is to presume that the work is not protected by copyright, in the US. In a relevant decision, Golan v. Holder, 565 U.S. 302, the court comments fn. 34 that

Because Shostakovich was a pre-1973 Russian composer, his works were not protected in the United States. See U. S. Copyright Office, Circular No. 38A: The International Copyright Relations of the United States 9, 11, n. 2 (2010) (copyright relations between the Soviet Union and the United States date to 1973).

But note that in the current version of that circular (linked above) this is fn. 6. The fact that it is unprotected in the US does not mean that it is universally unprotected. Your other concern would be whether it was protected under Soviet law, and for that you really need to hire a lawyer. At the time of the composition, the law (the 1928 law) seems to have been life+15. So, assuming that the work is not protected by copyright is somewhat risky w.r.t. being sued in US courts, and much more risky for other courts.