The Mudcat Café TM
Thread #27765   Message #1971352
Posted By: Richard Bridge
18-Feb-07 - 04:11 AM
Thread Name: Help: Copyright: Black is the Colour
Subject: RE: Help: Copyright: Black is the Colour
It may well depend on the jurisdiction.

If the song itself (words = literary work, tune = musical work) were both traditional (in the usual sense of the word) then they themselves are not protected by copyright (although UK law contains provisions dealing with works of unknown authorship that are or maybe still in copyright).

However if Niles (or anyone else) then arranged the work he would have gained (in Berne Convention countries, which the USA was not, at that stage) a copyright in his arrangement(s). Only in the USA and in any places basing their approach to copyright on that of the USA (which might have included some Universal Copyright Convention countries and Pan-American Copyright Convention countries) would registration or the use of a copyright symbol have been of relevance.

The Berne Convention, that the USA has since joined, and that is usually retrospective in effect, prohibits a requirement of the observance of formalities for copyright to arise, and IMHO that trumps its other provisions that member states may provide for works to be bereft of copyright if their term in their coutry of origin has expired (a provision that the UK did not impliment until 1988, and then not with respect to any coypright the term of which was already running).

Therefore subject to what I say below if you substantially reproduce either Niles arrangement, in the absence of an effective permission, that would be an infringment. If however you reproduce the traditional words and music without the Niles arrangement(s) tha tcould not be infringment.

If Niles wrote the work then the same applies as to subsistence, but plainly there will be no possibility of freely using the public domain source, for there is no public domain source.

Then we come to the tricky bit. In theory copyright can be waived. This is sometimes called "dedication into the public domain" or "dedication".   It is well known for example that Ghandi (speaking with a distinct lack of accuracy for a lawyer, which he was, a lawyer who had practised in South Africa (Roman-Dutch law, largely) and India (English law largely, and, I think although I am not sure, England) said "I have never copyrighted anything". But the Navajivan Trust now routinely asserts copyright in his works, and no-one AFAIK has successfully challenged such copyrights on the basis of those words. Once when I was acting for a producer who was being threatened by the trust I wanted to run the dedication argument, but the producer, who was a great admirer of Ghandi's work, refused to let me, since if I succeeded with the argument it would destroy the basis of a large part of the revenue of the trust and so undermine Ghandi's work.

So I know of no precedent to determine the clarity that is necessary for an effective dedication, and in principle every jurisdiction may set its own test. So whatever would otherwise be copyright might or might not have been placed in the public domain in any particular jurisdiction.

Similarly, not all jurisdictions have compulsory licensing once a record reproducing a work has been released.

If you are in the UK, in practice ring the MCPS and see if they will grant permission. If so you are covered.