Help: Public Domain or Copyrighted???

Subject: Public Domain or Copyrighted???
From: GUEST,maryrrf
Date: 17 Jun 02 - 09:53 PM

A local group wants me to record some songs for them. It would be a (very) small distribution, but I haven't done it because I think some of the songs would be copyrighted. Anyway I decided to check on some of them. How do you go about it? I picked "Kevin Barry" which I had doubts about - I never recall seeing an author attributed to it but wasn't sure. A search at BMI and Harry Fox turned up all kinds of hits, including the Clancy Brothers. What gives - I know they didn't write it! How do you definitively find out the status of a song? Sorry if this question has been asked before - I'm sure it has but I couldn't find it.

Subject: RE: Help: Public Domain or Copyrighted???
From: SeanM
Date: 17 Jun 02 - 10:20 PM

It's difficult to 'definitively' find a source. Best you can do is see if you can find paper sources attributing the song to a time that the copyright is definitely expired.

Asking the agencies is chancy at best. From experience, often they will tell you that the song is covered - when only one arrangement is. Many, many songs have had this done to them. Nothing wrong with it - arranging a traditional tune can be as creatively engaging as writing new material - but often there is confusion (which is to the publishing company's benefit) about the fact that while THAT arrangement may be covered, the actual song itself is quite firmly PD.

Of course, if you're not in the US, things are different depending on locale.

M

Subject: RE: Help: Public Domain or Copyrighted???
From: Dicho (Frank Staplin)
Date: 17 Jun 02 - 10:37 PM

Several threads with discussion of copyright. Put copyright in Digitrad and Forum Search. Some of the postings may actually be helpful.
Search the Traditional Ballad Index; sometimes helpful. Search
Or, list the songs here and ask for help.
Ask the group if they have made their own arrangements or lifted it from some source.

Subject: RE: Help: Public Domain or Copyrighted???
From: GUEST,Argenine
Date: 20 Jun 02 - 09:11 PM

Are Percy French's songs still copyright protected? If so, approximately when would they become PD?

Arge

Subject: RE: Help: Public Domain or Copyrighted???
From: Joe Offer
Date: 20 Jun 02 - 09:59 PM

Hi, Argenine. Click here for a rather interesting history of Percy French. He was born Cloonyquin, County Roscommon on 1st May, 1854. He died from pneumonia on 24th January 1920, aged 65. He is buried in Formby in Lancashire.

Here in the U.S. almost all songs published in 1923 and earlier are considered to be in the public domain. We were supposed to move forward one year every year, but Sonny Bono and the U.S. Congress passed a copyright extension that went into effect in 1998. As I understand it, that puts songs published after 1923 under copyright protection until most of us are dead.

After the bill was passed, it is rumored that Bono said, "I got you, babe...."


I oughta know. I started the rumor.

-Joe Offer-

Subject: RE: Help: Public Domain or Copyrighted???
From: GUEST,Argenine
Date: 20 Jun 02 - 10:20 PM

Thanks, Joe.

Just out of curiosity -- well, actually, out of more than mere curiosity --, since Congress keeps changing the copyright rules by way of added extensions, can they change them back the other way, if they're so inclined?

Arge

Subject: RE: Help: Public Domain or Copyrighted???
From: Suffet
Date: 20 Jun 02 - 11:19 PM

Once again please keep in mind that the U.S. Copyright Office does not issue copyrights in the sense that the U.S. Patent Office issues patents. What the U.S. Copyright Office does is register copyright claims. And anyone can claim just about anything. That dosen't mean the claim would stand up in court. But often it's easier and cheaper to just pay the fee.

--- Steve

Subject: RE: Help: Public Domain or Copyrighted???
From: NicoleC
Date: 21 Jun 02 - 12:23 AM

Good point, Steve. If I remember correctly from my copyright law classes (and it changes all the time, so don't take my word for it), common law copyrights -- not registered, that is, but assumed -- are only effective on songs if they have never been put into a public form, i.e. published as sheet music, recorded on a demo tape, etc.

Fat lot of good common law copyright does musicians, then :)

Arge -- I don't think so. Repealing copyrights would violate the 5th amendment as seizure of private property without compensation, I think.

Subject: RE: Help: Public Domain or Copyrighted???
From: Nigel Parsons
Date: 21 Jun 02 - 08:54 AM

A daft idea really, but since the EU changed the laws recently, to standardise at 75 years after death, and the previous was (I think) 50 years after, material copied prior to the change was done so legally, so if you have a photocopy made (outside of copyright) before the term was extended, this is not illegal.
Similarly, if you can download it from a site which held it legally before the law changed, then you are taking on their legal right to hold a copy....Comments?

Nigel

Subject: RE: Help: Public Domain or Copyrighted???
From: GUEST
Date: 21 Jun 02 - 09:48 AM

Works published in 1923 in which copyright was renewed are still under copyright in the U.S. The last "free" year is 1922. Joe's words "1923 or earlier" are a misprint for "1922 or earlier".

"Common law copyright" is falsely so-called according to some scholars. The more precise term, in this view, is "common law right of first publication". These common-law rights are now preempted in the U.S., for post-1977 works, by statutory rights, but they still exist in pre-1978 works. Some of the oldest such rights will begin to expire on January 1st, 2003. These old rights are relevant to folk music because even if a folk song was published in 1917, say, someone with the right geographic credentials can claim that the published version was his grandpappy's variant of the song, that his grandpappy never "authorized" the publication of the variant, and that he inherited the common-law R.F.P. If the claim is accepted, it makes the grandpappy's supposed variations pre-1978 unpublished matter, rather than published matter from 1917.

A false claim of this sort was raised on the words of "The Wreck of the Old 97". The court case was called George v. Victor Talking Machine Corp. The claim was accepted by the district court and rejected by the court of appeals for the 3rd circuit. Due to a technical mistake on the part of Victor's counsel, however, the litigation dragged on for several more years before the false claim of authorship was finally put to rest. Citations can be found in endnote 22 of this essay.

The current term for author copyrights in the EU is officially life+70 years (not life+75). But some French courts have recently added additional time to the life+70, due to some wording in the French law that was intended to be harmonized by the life+70 provision!

Around 1995 the U.S. copyright in some foreign works (such as Prokofyev's Peter and the Wolf) that had previously been PD in the U.S. was restored by a law called the URAA.

Some information that can assist you in determining the copyright status of old music is here, here, and in Stephen Fishman's book The Public Domain.

Subject: RE: Help: Public Domain or Copyrighted???
From: Alice
Date: 21 Jun 02 - 02:52 PM

You can go to www.songfile.com click here and search for the copyright owner of songs as well as copyrighted arrangements of public domain songs. You can also easily contact the owner of the copyright and license the usage through that site. The specific purpose of that site is to connect people with the copyright owners of songs so people can license their use. If you search a song title on Song File.com and get no results, the song is probably in the public domain (in the US, anyway).

Subject: RE: Help: Public Domain or Copyrighted???
From: Alice
Date: 21 Jun 02 - 02:58 PM

I should take that back - if you don't get results on a title search, not "probably in the public domain" but rather "might be in the public domain".

Subject: RE: Help: Public Domain or Copyrighted???
From: paddymac
Date: 21 Jun 02 - 07:07 PM

The reference by SeanM and others to "arrangements" is possibly more weighty than it appears. Simple word and/or note alterations can make your "version" a "unique arrangement." A fine example is to look at Hal Leonard Corp.'s "Celtic Fake Book." All, or nearly all, the songs in it are labeled "traditional," and each one is independently marked as "Copyright 2000, Hal Leonard Corp." If you're attentive to subtle nuances, you'll pick up on subtle variations between their versions and others.

Subject: RE: Help: Public Domain or Copyrighted???
From: DonD
Date: 21 Jun 02 - 08:29 PM

This song is your song
I learned it when I sang along
Then I got some of the words wrong
Now this song belongs to you and me!

How much of a variant lyric or arrangement makes it a different song that I can copyright myself? I only sing for fun and theer's no question of anyone ever paying to hear me, so I don't much care.

Of course if I wrote a song and it became a hit I'd hope to be rewarded for it -- but if people thought it was traditional, that would be reward enough. And if someone else wanted to perform it, that would be a pretty good reward, too. And if I was acknowledged as the writer, WOW! But if somneone else took the credit -- and the money -- BUMMER!

Subject: RE: Help: Public Domain or Copyrighted???
From: GUEST
Date: 21 Jun 02 - 08:41 PM

JUST DO IT!!!

Stop making excuses. You will learn and grow. Don't have doubts.

Subject: RE: Help: Public Domain or Copyrighted???
From: Haruo
Date: 21 Jun 02 - 09:22 PM

So can/does simply transposing a PD melody line into a different key constitute "arrangement" for copyright purposes?

And, can anybody tell me why the Benedictines' Collegeville Hymnal gives copyright credit for the old Dutch tune In Babilone to the Episcopalians' Hymnal 1982 (© 1985), when all they use is the melody line, and that melody line is identical to the one that has been in the public domain for almost 300 years (first publication 1710)? Hymnal 1982 itself doesn't assert such a claim. It may be that "harm. Charles Winfred Douglas, 1867-1944" (in the Collegeville Hymnal refers to an arrangement that is under copyright, but I don't see why that would affect the PD status of the melody line (in G Major) which is all they print. (And all my copy of Hymnal 1982 shows, either. Maybe the copyright arrangement is in the organists' editions?)

Liland

Subject: RE: Help: Public Domain or Copyrighted???
From: Genie
Date: 21 Jun 02 - 09:23 PM

paddymac,
Re "Simple word
 and/or note alterations" making your "version" a "unique arrangement," I'm wondering how that fits with the policy that short phrases [e.g., titles] can't be copyrighted.  E.g., if I take an old PD song like "Swing Low, Sweet Chariot," and I add a verse or I change "Comin' for to carry me home" to "Come down to carry me home," I could not claim a copyright on the two-word phrase "come down," and, presumably, since the rest of the line is PD, the whole line would be--right?  If, however, someone recorded the old spiritual, including my new verse and my word changes, I could claim they were violating the copyright on the arrangement of the song.  But, say they left out my new verse and kept "come down" as the only one of my changes, would keeping those two minor word changes constitute 'stealing' my "arrangement," if everything else in the song was done in a traditional manner?
 
 

Nicole [and Argenine]
Re: Repealing copyrights [violating] the 5th amendment as seizure of private property without compensation, it seems to me that might be debatable [especially if the author is long dead].  Doesn't the government change its mind about legislated property rights from time to time?

I'm not a lawyer, but maybe someone who plays one on the internet can shed more light on the matter.  It's scary if an overzealous Congress can pass sweeping legislation that can't be undone through proper legal means.

Subject: RE: Help: Public Domain or Copyrighted???
From: toadfrog
Date: 21 Jun 02 - 09:40 PM

If I recall correctly, the rule that "common law" (state law) copyrights are only preempted if the publication post-dates 1977 applies only to copyrights of recordings, not the songs themselves

Subject: RE: Help: Public Domain or Copyrighted???
From: NicoleC
Date: 21 Jun 02 - 11:14 PM

On the variations and arrangements issues, I believe the typical legal test is whether or not it is a significant artistic change. Slightly changing the words wouldn't do it necessarily, but producing the first rock 'n' roll arrangement of "Tonadilla" probably would, even if you played it note for note. Song parodies, for example, are usually both licensed and copyrighted as a new variation.

Shakey ground... if you try to get away with it, you might want to avoid infringing on anybody with enough money to hire better lawyers than you :)

Subject: RE: Help: Public Domain or Copyrighted???
From: Stilly River Sage
Date: 22 Jun 02 - 12:31 AM

Here's a site that I've referred people to several times over the last couple of years. The attorneys for the University of Texas system set this up for university use (that's several very large universities lumped together, including mine, UT Arlington). But it works for others as well.

Intellectual Property Information

SRS

Subject: RE: Help: Public Domain or Copyrighted???
From: GUEST,maryrrf
Date: 22 Jun 02 - 08:45 AM

Too bad this is all so complicated! It's why I've mostly stuck to songs I know are traditional. It's just easier that way!

Subject: RE: Help: Public Domain or Copyrighted???
From: T in Oklahoma (Okiemockbird)
Date: 23 Jun 02 - 01:39 PM

A good discussion of the threshold of copyrightability in musical arrangements and adaptations is here.

Toadfrog is rolling two separate issues into one: (1) the common-law right of first publication, and (2) state anti-bootlegging laws that apply to sound recordings. U.S. law replaced (2) with a statutory copyright beginning sometime in 1972. For recordings made before the 1972 date when Federal copyright in sound recordings took effect, state laws may still apply. The date when these state law provisions for pre-whenever-it-was-in-1972 were finally to be preempted by federal copyright law was 2047 under the 1976 law, but this has been extended to 2067 by the Sonny Bono Copyright Term Extension Act, a.k.a. the Mickey Mouse Protection Act. For more information check Professor Karjala's harmonization chart, lines 16-18. Toadfrog is right that the state anti-bootlegging laws, like the federal copyright in a sound recording, applies only to the recording, not to the matter recorded.

Many non-U.S. recordings from before 1972 are now covered in the U.S. by federal copyright law under a 1995 law called the URAA, which implemented some features of the GATT. I don't think state law applies to these recordings anymore, though I'm not sure.

The common law right of first publication (type 1 above) was replaced in the 1976 act with a statutory term equal to that of a copyright. For unpublished works created before 1978 and never "published" according to the legal definition of the word (which may have nothing to do with whether it was ever actually published or not) these common-law rights expire beginning on January 1st, 2003 for never-published works of authors who died more than 70 years before then. If the works are legally "published" before then, they are covered by a copyright which lasts until 70 years (previously 50) after the death of the author or until January 1st, 2048 (previously 2028), whichever is later. (See Professor Karjala's harmonization chart, lines 19-20.

All this, of course, it not legal advice, does not establish a lawyer-client relationahip, I'm not even a lawyer, etc., etc.

T.

Subject: RE: Help: Public Domain or Copyrighted???
From: GUEST
Date: 16 Oct 02 - 08:22 PM

Handy-Dandy chart on when works pass into the public domain, by Lolly Gasaway, Univ. North Carolina is here: Public Domain Dates

I found than my poor brain had trouble dealing with the duration of copyright regulations in the material put out by the US Copyright Office: US Copyright
The Gasaway chart simplifies interpretation. The notes are provided by a professor of law. This may have been pointed to before, but I didn't spot it.

Note that material published in 1923 or later still has copyright protection. (I read it 1923 protected until 2018).
Anything before 1923 is fair game except- in rare cases. Look up the thread on Waltzing Matilda and read the sad story about how royalties had to be paid when that song was played at the Salt Lake City Olympics. Only in America, you say? Yes.
You will not be protected from future diddlings by Congress and their appointed committees (See Bono threads).

Subject: RE: Help: Public Domain or Copyrighted???
From: GUEST,Richie
Date: 16 Oct 02 - 09:37 PM

I'm curious about songs that were in exsistence before 1923 but were first copyrighted after 1923.

Does the first copyright holder really have rights on a folk song if you can show evidence that it pre-exsisted?

Songs like "Home on the Range" "Cripple Creek" "Ida Red" are examples.

Does anyone have feedback on this?

-Richie

Subject: RE: Help: Public Domain or Copyrighted???
From: GUEST
Date: 16 Oct 02 - 10:48 PM

Home on the Range has court-accepted dates, since the Goodwin claim died in 1934 with the discovery of a printed copy from 1876.
I think Waltzing Matilda fell into that 1923 catch-22 because the words, although written near the end of the 19th c, , and the music as well, were changed somewhat in the version most used. It is that version that is copyrighted. (Too lazy to go back to the threads on this which have a clickee to an Australian site with the whole story).

I think anyone would have a hell of a time trying to claim copyright on Ida Red-Cripple Creek. Most of the words can be traced to verses collected around 1915 by various collectors. Sharpe had the tune. Brown has "Cripple Creek sung in two versions, with music, before 1923. The Poole and Wills versions, however, are protected in their unique form.

I would like to have this provision of the Copyright Law fleshed out with examples- and this is where your question comes in-
Quoting from the regulations- "Works originally created before January 1, 1978, but not published or registered by that date.
These works have been brought automatically under the statute and are now given federal copyright protection. The duration of copyright in these works will generally be computed in the same way as for works created on or after January 1, 1978: the life + 70 or 95-120 year terms will apply to them as well. The law provides that in no case will the terms of copyright for works in this category expire before December 31, 2002 and for works published on or before December 31, 2002, the term of copyright will not expire before December 31, 2047."

I can't get a clear picture in my head here. What is the starting date under this section? Is it the date of registration or publication? Or is it some date of origin, determined from notes or some other way?
Legal help, please. Not the first time that this has come up, but never answered satisfactorily.
Interesting point. You can register a diary, etc., found in your grandmother's attic if you are the legal heir.
US Copyright Regulations- US Copyright

Subject: RE: Help: Public Domain or Copyrighted???
From: Bob Bolton
Date: 16 Oct 02 - 11:43 PM

G'day GUEST (16 Oct 02 - 10.48),

All the claims to copyright on the best-known version of Waltzing Matilda are spurious because they are based on a 1939 claim for composition by of the tune by Marie Cowan ... lodged by her widower after her death. She never claimed to have composed ... only "arranged" (the Christina McPherson tune, which was her memory/reshuffling of an 1893 arrangement of Barr's 1805 setting of Craigielea).

As such, the only valid claim is on her specific arrangement ... but that won't stop the American mega-music mogul that claims to have bought a valid copyright from suing you, if you record it ... even if you use Christina's distinct version ... or the totally different "Queensland" or "Buderim" tune!

Regards,

Bob Bolton

Subject: RE: Help: Public Domain or Copyrighted???
From: GUEST
Date: 17 Oct 02 - 12:00 AM

Bob, one more point- Are the mogul's claims only a threat in the United States? All I know is that the Australians knuckled under in Salt Lake, but as I understand it, they can use it anywhere else.

Subject: RE: Help: Public Domain or Copyrighted???
From: GUEST,Richie
Date: 17 Oct 02 - 12:06 AM

Guest-

I didn't give very good examples. How about Bob Wills version of "Ida Red" or his version of Stay All Night"?

I think lots of people have tried to copyright folk songs instead of versions of a folk song.

"Dark Hollow" and "Greenback Dollar" are copyrighted?!?%#$

I don't get it.

-Richie

Subject: RE: Help: Public Domain or Copyrighted???
From: GUEST
Date: 17 Oct 02 - 12:40 AM

I have trouble understanding a lot of this. That's why I am hoping for a lawyer to come in here.
I had Wills' and Poole's songs in mind, when I said that these versions are protected (after 1923), "in their own unique form." At least I hope that the copyrights don't go beyond their particular versions.
The regulations also say something about how "close" a revision may come to an older one, etc., but I quit reading. It all sounds like lawyer Heaven to me. The guy with the bucks can bust the little fellow easily even before he comes to bat.

Subject: RE: Help: Public Domain or Copyrighted???
From: Nigel Parsons
Date: 17 Oct 02 - 06:14 AM

Of course, the automatic availability of anything pre-1923 would appear to clash with the 'Life + 70'. A song composed in 1900 could be an early work by a composer who lived 'til (say) 1960. Copyright should then cover it to 2030.
The listed systems of US copyright do not seem consistent.

Comments?

Nigel

Subject: RE: Help: Public Domain or Copyrighted???
From: Bob Bolton
Date: 17 Oct 02 - 06:58 AM

G'day again GUEST,(17 Oct 02 - 12:00 AM)

I take that the US copyright, for all that it is worth, is a US matter. Copyright in other countries is their own law ... and the US was only dragged, kicking & screaming, into the Bern Convention in the 1950s ... before which they were the notorious and outright copyright pirates of the world.

I'm afraid that events organisers are never going to be game to take on the 'moguls' ... it is too easy for them to disrupt all the showbiz hoopla that is part and parcel of the game, these days. I'd hope the Aussies would ave said "Bugger them!" and used the song - but the event bosses can't take that sort of chance.

(I had a similar response when the planned reunion of the surviving (original) Bushwhackers Band was blocked by the latter-day 'Bushwackers' ... who claim a valid registraion of a name pinched from the blokes who started the whole bush band ethos. Right is one thing - risking a festival being levelled by an injunction from some legal shark isn't worth it.)

Regards,
Bob Bolton

Subject: RE: Help: Public Domain or Copyrighted???
From: Orac
Date: 17 Oct 02 - 08:07 AM

What happens in say the case of "When you were sweet sixteen" by James Thornton which was copyrighted originally in 1898 and then an abridged version was copyrighted in 1944 for the film "The Jolson story". Is the original out of copyright or not?

Subject: RE: Help: Public Domain or Copyrighted???
From: kendall
Date: 17 Oct 02 - 08:47 AM

When I recorded Ashes on the sea, I sent, and continue to send Utah Phillips royalties. Same for The Band Played Waltzing Matilda; I send Eric Bogle his fee.
Considering the small market for our music, I doubt that anyone would get very upset if you record their songs. It costs money to fight, and we are too small to make it pay.
Now, that said, if you plan to sell a million or more, do your homework.
Arginine, very interesting name. Does it mean what I think it means?

Subject: RE: Help: Public Domain or Copyrighted???
From: Bob Bolton
Date: 17 Oct 02 - 11:31 PM

G'day Orac,

I would think that the 1898 version is safely in the public domain ... but you can guarantee that the holders of the 1944 copyright will claim fees on any recording ... and anyone that fights it, might win ... and get their record released ... in a few years ... after making a lot of lawyers rich!

A friend, here in Australia, has Maggie, Maggie May on a recording. The first mention of this folk song is in an 1832 ship's log - but my friend has to pay royalties to a septic(*) pop singer who recorded a pop song with the same name.

There is no way that he can avoid it - short of fighting for years and mortgaging his house to pay the first week's legal fees!

(*) Rhyming slang + American (septic tank)

Regards,

Bob Bolton

Subject: RE: Help: Public Domain or Copyrighted???
From: Orac
Date: 18 Oct 02 - 07:44 AM

G'day Bob. Who would get the royalties now as Mr Thornton died in 1938. If he didn't have any family, who would own the copyright?

Subject: RE: Help: Public Domain or Copyrighted???
From: Orac
Date: 18 Oct 02 - 08:00 AM

I think my last posting is rather academic as he sold the copyright to the publisher for the price of a few bottles of booze.. He had trouble controlling his drinking. Actually he sold it to two which caused a legal wrangle at the time.

Subject: RE: Help: Public Domain or Copyrighted???
From: Bob Bolton
Date: 18 Oct 02 - 10:10 AM

G'day again Orac,

That's about the story ... if you geta couple of bottles of booze - you are winning - with Tin Pan Alley's 21st century inheritors.

Regard(les)s,

Bob Bolton

Subject: RE: Help: Public Domain or Copyrighted???
From: GUEST,leeneia
Date: 18 Oct 02 - 10:46 AM

Things to bear in mind.

1. There is no penalty for claiming a copyright to which you are not entitled, so promoters, entertainers, record companies do it right and left.

2. I went to the Public Library and read up on copyright in several encyclopedias. They say that copyright laws were created to reward "creative effort." Do mechanical acts such as changing the key, adding chords or changing a couple words constitute creative effort? No.

3. You will never get a definite answer to a question such as "Can this little folk band really have a copyright on 'Old Hundredth'?" because it isn't worth it financially to take them to court and shoot them down. (Old Hundredth is from the seventeenth century.)

4. I say that if it's a US song and a US performance and the melody was around before 1923, just go ahead.

5. Some of the language and concepts of present copyright law are confusing. That's because the new laws cover rock bands who generate music on their machines. The music goes straight to a CD. They don't know what they played and they couldn't generate a paper copy if their lives depended on it. (Though perhaps a computer could do it for them.) Nonethless their efforts make a lot of money, are creative effort, and are protected by copyright.

Subject: RE: Help: Public Domain or Copyrighted???
From: EBarnacle1
Date: 18 Oct 02 - 04:39 PM

Also consider "M'Bube," known here in the US as "Wimoweh." the original author had it copyrotten. The guy who stole it and changed a few words got rich from it and won an infringement case. The writer's family got bupkes [nothing].

Subject: RE: Help: Public Domain or Copyrighted???
From: GUEST
Date: 18 Oct 02 - 05:58 PM

No written copy is necessary under current rules. Your rockers can get their cds registered if they pay the fee.
In the end though, as Bob Bolton says, if you can't pay he legal fees, too, too bad!