I am a musician and folklorist with a strong interest in song origins and the history of how the copyright process has been abused when it comes to "folk" music. The Carter Family collection of songs is a great case study. And this is a great thread. (I also recommend the book "Will You Miss Me When I'm Gone" which provides some general info on A.P. approach to song catching.

To my knowledge, the only song that A.P. Carter may actually have written from scratch is Little Darling Pal of Mine – and that is disputed by some, and there are similar songs. (But let's be honest, you can't write a "new" folk song that isn't similar to some old ones.)

However, the work A.P. did on many of the songs in changing the melody, form, and lyrics, along with the distinctive arrangements that the CF recorded, unquestionably qualify them as copyright holders under current copyright law. (Whether that law is fair or well-defined enough is another discussion!)

Versions of many of these songs that we musicians have heard are almost undoubtedly descended from the Carter Family recordings and we would be hard pressed to record our derivative versions and claim we should not be required to pay royalties because we read that there were versions extant prior to the Carter Family recordings.

On the other hand, many of the Carter Family tunes were merely assimilated by the trio and the estate hold the copyrights only because there was no one to object at the time. (Prior to the mass marketing of phonograph recordings of folk and country music and the corresponding royalties, holding such copyrights wouldn't have been worth the effort necessary to secure them.)

Sometimes the copyright/public domain decision can be amazingly trivial. (If you sing "Can the circle be unbroken" it's PD, but if you sing "Will the circle" it's not?) And the copyright holders have all the clout – they have the lawyers and legal apparatus to make life miserable for any recording artist/producer/record label/disc presser/etc. Their goal – and they are successful – is to make it easier to pay the royalties than to risk a legal battle.

I have dealt with this issue in performing in restaurants that have no ASCAP/BMI/Sesac license and therefore are restricted to traditional, public domain, and original material. Trust me, the ASCAP and BMI agents don't care, if they here a song that has the same title as one in their catalog (and most folk songs have published/licensed arrangements) they will try to intimidate the restaurant owner by threatening a legal action if they don't purchase a license. (Try telling a business owner that you'll play a weekly gig for $150 a week but the three music licenses he needs might cost him twice that!)

I recently recorded a CD of songs that were popular in the year 1964 in Greenwich Village during the folk revival (I refuse to call it a "scare") and I could tell you a story about almost every song. Let me share just a few:

House of the Risin' Sun – Obviously PD, right? Not if you use the notes in the organ run the Animals used for their recording. And there are several other arrangements that are copyrighted as well. So take your pick. Yet the song is traditional and my version qualified as PD.

Statesboro Blues – Attributed to Willie McTell (although he may have picked it up from someone else) and there is a copyright in his name. But wait, the version I perform is most like one I heard Taj Mahal do back in the 60's and he holds a copyright on that arrangement.

Black Eye Blues – An old MA Rainey and Tampa Red song from 1920. So its PD, right? Well, the version I sing is one I heard Judy Henske do in 1964. To get a new copyright (and maybe to make the song acceptable for television) her producer changed the title to "Low Down Alligator" and changed one line in the lyrics form "catch you with your britches down" to "catch you with your socks rolled down." I chose to use Ma Rainey's original (?) version and lyrics.

Don't Think Twice, It's Alright – Easy, a Dylan tune, right? Well, sort of. Dylan actually stole the tune from his pal Paul Clayton who performed a song called "Who's gonna buy your chickens when I'm gone" while on an Appalachian song catching field trip. Paul changed the words to "Who's gonna buy your ribbons when I'm gone" to give it a more city-like feel. Dylan came up with new words and Witmark (the publisher) didn't even give Paul co-billing. Paul was ticked, so to make it up to him Dylan took him on his concert tour that year. For Clayton it might have been a case of bad karma, for he had stolen a song a few years before (Gotta' Travel On) that he had no role in writing and made quite a bit off the royalties after several artists recorded it.

Making the whole copyright thing even more complicated is that some songs that were copyrighted weren't renewed in a timely fashion and therefore are technically PD. (But unless you're planning to press at least 10,000 CD's the effort to establish this fact about any given song will be more costly than the royalties.

My advice? If you perform a song version that is derived from a song and arrangement that was printed and/or published in 1922 or before, list it as public domain. Otherwise go to the Harry Fox web site and "pay the man."