What Is Public Domain

Subject: What Is Public Domain
From: Sandy Mc Lean
Date: 10 Sep 08 - 10:02 PM

Another active thread raises a question in my mind:
If a person modifies (steals) something in PD what exactly do they own? How do they prove that ownership? (USA copyright laws excluded)
Why do copyright laws even allow this obvious theft? Is it all about $? . USA copyright, I know is industry driven and I make exception, but wht is this theft allowed?

Subject: RE: What Is Public Domain
From: Sandy Mc Lean
Date: 10 Sep 08 - 10:05 PM

wht typo "why"

Subject: RE: What Is Public Domain
From: Jim Lad
Date: 10 Sep 08 - 11:06 PM

I just modified a couple of songs (added verses) recently and do not feel that it gives me any kind of ownership however there are folk icons who have pretty well made a living at "Arranged and adapted by".

Subject: RE: What Is Public Domain
From: JedMarum
Date: 10 Sep 08 - 11:38 PM

You can own the copyright to "arrangement" of PD material. You can register a new work that is based upon existing works of others (with their permission) and own a percentage of the new work. And you can create a new work based upon PD material - in which case you will own a percentage of the new work. In both cases of partial ownership, the new percentage is small.

Subject: RE: What Is Public Domain
From: Mavs82
Date: 10 Sep 08 - 11:40 PM

In terms of the recorded song it is more about the copyright of the recording - ie to prevent copying etc of CD's. Most artists who record trad stuff are willing to accept that they have done so, but (to my knowledge at least) no one has ever tried to then prevent others from doing their own interpretations of the same trad tune/song.

In that respect the copyrighting is, I believe, quite justified. In the same way a photographer owns the 'intellectual rights' to his work rather then the person photographed, so the recording artist maintains the 'intellectual rights' over his/her work.

Subject: RE: What Is Public Domain
From: JedMarum
Date: 10 Sep 08 - 11:41 PM

You prove ownership with a registered copyright. Publishing the work with credits listed correctly can be a proof of ownership.

Subject: RE: What Is Public Domain
From: JedMarum
Date: 10 Sep 08 - 11:55 PM

I don't understand the question of "stealing."

Singing, recording or otherwise performing a PD work is not stealing. Rearranging and/or adding new lyric or even modifying or adding melody isn't stealing. Doing so to a copy protected work is not stealing either, with the composer's permission.

USA copyright law is industry driven? I don't understand. The US copyright law protects the right to copy for the intellectual property of the individual. It is very much a protection for the composer and most of us are operating as individuals within the music/entertainment industry.

Publishing law likewise offers protections for the owners of intellectual property. Most of the law practiced around the music industry is focused on large scale providers (record companies, TV, radio, film, etc) but individuals who are composers AND publishers (like me) still have good protections under US law. The trick is trying to get good legal help, tracking, etc for small scale numbers. If your music is getting 1,000 spins a day - you'll have no problem tracking and getting good help if you need it. If you're getting 1,000 spins a year, you'll be digging through the code and tracking on your own. BUT you have the same protections as the big guys.

Subject: RE: What Is Public Domain
From: JedMarum
Date: 11 Sep 08 - 12:02 AM

As for copy protecting newly arranged or modified PD material, it was common practice for record companies to do that when their artists recorded PD material. It is not always done today.

I have done so for songs that I made significant changes to, for example used old melodies for entirely of mostly new lyrics - or for putting a PD poem to music. But even when I've rewritten whole verses in the style of the old song I've listed the song as PD.

Subject: RE: What Is Public Domain
From: Marion
Date: 11 Sep 08 - 12:11 AM

Jed, for a song like your "Ballad of Thomas Higgins" where the lyrics are original and the melody is traditional - how do mechanical and performance royalties work?

My understanding is that when one person writes the lyrics and another writes the music they each get 50% of the royalties, but if your "composer" is tradition rather than a specific individual, then do you get 100%? Or do you get 50% and the other 50% isn't owed to anybody?

Thanks, Marion

Subject: RE: What Is Public Domain
From: JedMarum
Date: 11 Sep 08 - 12:23 AM

The "Ballad of Thomas Higgins" track has not played enough to hit the ASCAP samples, so it has generated no "airplay" royalties for me. Likewise for performance.

If memory serves me correctly from the copyright and publication processes, if it did play, I would collect less then 50% royalty for each play - it seems to me the figure was about 40% (all new lyrics).

If I coauthored a work and registered it as a 50/50 ownership then that is how the split is made. It can be further broken down at the time the copyright is registered. If you wrote a melody, the you and I wrote the lyrics we would set it up as 75% to you and 25% to me, I believe.

Subject: RE: What Is Public Domain
From: Marion
Date: 11 Sep 08 - 12:37 AM

Interesting - do you have any idea what the rationale for that 40% is? I can see a rationale for paying you 100% (because you're the only identifiable individual to credit for the song) or for paying you 50% (because your lyric are "half" of the song) - but less than half?

Marion

Subject: RE: What Is Public Domain
From: JedMarum
Date: 11 Sep 08 - 12:39 AM

ASCAP samples - just in case it isn't clear; my music is published through my ASCAP affiliated company. ASCAP tracks "airplay" and calculates royalty payments by sampling the radio waves - and that is done mostly in the mainstream markets.

That means that mainstream media outlets get the most attention, and mainstream airplay and live performance is calculated, presumably with a good deal of accuracy. The folks like me who live on the left end of the radio dial do not get much attention from these samples. Folk and Celtic radio is not a major contributor to the airwaves gene pool, it seems!

Subject: RE: What Is Public Domain
From: JedMarum
Date: 11 Sep 08 - 12:41 AM

I think the rationale is that the original work, even if it is PD - was the major piece of art created. The new work exists only because of the value of the old. And there is some sense to that logic.

Subject: RE: What Is Public Domain
From: JedMarum
Date: 11 Sep 08 - 12:46 AM

... Back to tracking - so even though I know the "Ballad of Thomas Higgins" has played on the air a number of times (I've heard it and seen it on radio playlists) it was not picked up by the ASCAP samples. I haven't bothered to chase down the small payments for these kind of issues - and after several years of low to moderate airplay I am just now beginning to see ASCAP samples including my songs.

Hopefully thing will continue. The movie and TV stuff will help and teh new album, I think will play well - so I hope I'll have better news in the next year.

Subject: RE: What Is Public Domain
From: Jim Lad
Date: 11 Sep 08 - 01:12 AM

"no one has ever tried to then prevent others from doing their own interpretations of the same trad tune/song."

I think it was Christy Moore who took a well known Irish figure to court who had tried to claim ownership of a traditional song and prevent him from singing it,
It does happen or at least, it has.

Subject: RE: What Is Public Domain
From: pavane
Date: 11 Sep 08 - 06:31 AM

Copyright can be CLAIMED on traditional material, as was apparently done by a "well known Irish family" (and also by Bob Dylan, though he did make changes)

If you don't agree, and want to use it yourself, your best strategy is to use a version which clearly predates the claimed copyright.

So instead of Wild Mountain Thyme/Will ye go lassie, you could sing Braes o' Balquidder. Not quite the same, but MUCH older (1797. I think)

Subject: RE: What Is Public Domain
From: Sandy Mc Lean
Date: 11 Sep 08 - 06:57 AM

Thanks for the responses! On my original thread though, I have excluded USA copyright laws because they are different. They allow what I have called "theft". In most parts of the world copyright belongs to the originator, not the first to register. I am confused a bit by Jed's proportioned ownership though.

Subject: RE: What Is Public Domain
From: pavane
Date: 11 Sep 08 - 07:39 AM

Yes, but you have to be able to PROVE the originator.

Subject: RE: What Is Public Domain
From: Sandy Mc Lean
Date: 11 Sep 08 - 07:50 AM

"Yes, but you have to be able to PROVE the originator."
Not if you can show it to be PD. Then the burden of proof falls on the claiment.

Subject: RE: What Is Public Domain
From: pavane
Date: 11 Sep 08 - 10:38 AM

As far as I know, the only ways it can be shown to be in the public domain are by

1 Documentary evidence of its existence sufficiently far in the past
(Publication in some form, or a firmly dated handwritten copy)

or
2 Specific granting of it to the public domain by the author.

Subject: RE: What Is Public Domain
From: Sandy Mc Lean
Date: 11 Sep 08 - 12:35 PM

Pavane, it's the other way around. Everything is PD unless valid coprright can be shown. Publication does little but prove that a work excisted on a certain date. If it credits an authour that is evidence but not proof of who created the work. If one were to change a few words in the Lord's Prayer would that give them copyright? Of course not but that is what happens with much PD music. However copyright is only a claim that has to be proven in court. It's mostly about dividing up royalties rather than establishing ownership.

Subject: RE: What Is Public Domain
From: Q (Frank Staplin)
Date: 11 Sep 08 - 03:35 PM

"...excluded U. S. copyright laws..."
Cannot be done.
See Universal Copyright Convention (rev. 1971). Signators include USA, United Kingdom.
http://portal.unesco.org/en/ev.php-URL_ID=15241&URL_DO=DO_TOPIC&URL_SECTION=210.html
(or google International Copyright Convention).

Also see Bern Union for the Protection of Literary and Artistic Property.

Subject: RE: What Is Public Domain
From: GUEST,TJ in San Diego
Date: 11 Sep 08 - 05:35 PM

A bit of an aside, related to this discussion:

In the late 1950's, Randy Sparks (much later, developer of the New Christy Minstrels)was doing a solo act as a ballad singer. He appeared at the Fresno, California, Hacienda Hotel back in those days. During the same period of time, our little coffee house, The Renaissance, had several resident locals with varying degrees of talent. One, Jon Adams, the de facto "senior member," was doing a song called "Rosie's House of Sin" on a regular basis. One evening, a nice looking young fellow showed up, didn't say much, and sat listening to Jon's act. At the end, he went up to introduce himself and to ask why Jon had not at least mentioned, or credited the composer of the song. He then gave his name - Randy Sparks. That song is probably in the PD by now, but when I mentioned the incident in an e-mail to Randy a few months ago, he still remembered it, with laughter. Jon was still performing, last time I heard.