Questions Re: the Lomaxes and Copyright

Subject: Questions Re: the Lomaxes and Copyright
From: SDShad
Date: 20 Dec 03 - 10:59 PM

It's me! (*who the hell is he?*) Back from a long absence. Busy, busy, grad school, work, busy, busy, and, uhm, way too much time spent on the Firefly boards. Haven't even been gigging much lately. A big howdy to all the friends I have here whom I haven't, to my own fault, seen in a coon's age.

Anyway, my bride, the lovely Hypatia, whom some may remember, is finishing up a paper for grad school that is for her Managing Distance Education class that really is also research specific to an NSF grant she has received to develop distance education materials for teaching violin. The paper is, in particular, about copyright issues involved in same, specifically as regards folk songs and folk tunes. The project uses many techiniques and media, including individual mentoring and 3D animation. The project is not just using folk music to make copyright issues simpler (which isn't always the case), but also because her exploration of current research in learning theory is bearing out that apparently children should be introduced to music education through folk music first, because it is considered the natural idiomatic music of any culture, and thus the learning is more natural.

So in other words, all of her classical music training was the wrong way to begin. The time she spent up in the Black Hills in her Aunt Susie's parlor was probably much more fruitful. :-)

Her two questions, to which she has searched for, but hasn't yet found, an answer, have to do with the Lomaxes and the way they copyrighted many of the songs they collected.

1. Since Alan and John were both curators for the Library of Congress when they did their collecting, how were they as federal employees able to copyright their work instead of any copyright belonging to the United States, and thus being essentially in the public domain? Has the Lomaxes' copyright on any of these songs ever been challenged on this basis?

2. U.S. Code on copyright states:

"The copyright in a compilation or derivative work extends only to the
material contributed by the author of such work, as distinguished from the
preexisting material employed in the work, and does not imply any exclusive
right in the preexisting material. The copyright in such work is independent
of, and does not affect or enlarge the scope, duration, ownership, or
subsistence of, any copyright protection in the preexisting material."

So, since the Lomaxes, by this code, should only have been able to copyright the *derivative work*, i.e. the recordings they made and not necessarily the tunes, words, or arrangements the musicians used in those recordings, has the Lomaxes' copyright on any of these songs ever been challenged on *this* basis?

Consider these questions in the light that copyright is only a registration service; it doesn't grant the copyright holder ownership of the work, but simply registers a claim *of* ownership.

Thanks much from both Hypatia and me on any light the community can shed on these issues.

SD "Prodigal" Shad

Subject: RE: Questions Re: the Lomaxes and Copyright
From: Q (Frank Staplin)
Date: 20 Dec 03 - 11:26 PM

The latest Circular 92, Copyright Law of the United States of America, is available for $24 from Superintendent of Documents, PO Box 371954, Pittsburgh, PA, 15250-7954.

Full information on ordering as well as the complete publication, and important sections, is on line at www.copyright.gov/title17: Copyright

Especially important are the amendments of 1998 and 2002. An online order form is available for applicants with USA addresses.

Interpretation of specific cases may require legal assistance.

Subject: RE: Questions Re: the Lomaxes and Copyright
From: SDShad
Date: 21 Dec 03 - 04:40 PM

Thanks, Q. Yeah, she already found the complete copyright code at some federal website or another. And it's definitely in their plan already to have some sort of legal counsel on copyright issues on the tunes/songs they choose for the project.

What she really was curious about, though, was what folk here might know about historical copyright issues sourrounding the Lomaxes and their collecting work, since she hasn't been able to find what she's looking for there. Any takers?

Chris

Subject: RE: Questions Re: the Lomaxes and Copyright
From: Q (Frank Staplin)
Date: 21 Dec 03 - 05:05 PM

SD Shad, it is my understanding that the Lomaxes were on the official payroll at the Library of Congress for only a small part of their collecting history. No idea what their contract arrangements were; never seen any details.
John A. Lomax was connected with Harvard University for much of his collecting career; he was only an "honorary consultant" to the Library of Congress. The Library was a repository; they probably retained all copyrights except for material specifically issued by the Library (and the Smithsonian). Alan Lomax renewed copyrights on John Lomax material.

Probably a complex question you are asking here.

Subject: RE: Questions Re: the Lomaxes and Copyright
From: Richard Bridge
Date: 21 Dec 03 - 05:07 PM

I once (some years ago) sat and read Nimmer (the principal US practitioners copyright textbook, then 4 volumes, now 6) from end to end for comparative research purposes. But I know it far less well than English copyright law.

May I nonetheless say how nice it is to see such an intelligent question on the subject? I cannot answer it but it does indeed draw, I submit, the right distinctions.

Subject: RE: Questions Re: the Lomaxes and Copyright
From: Malcolm Douglas
Date: 21 Dec 03 - 07:57 PM

One issue which is often not taken into account is the extent to which the published material has been editorially mediated. I understand that the Lomaxes published a good many quite heavily collated texts, much of the material included being from unidentified sources. In effect such texts are separate from those originally collected (and may at times bear little resemblance to them) which might add a further layer of complication where questions of intellectual property are concerned. Differing considerations will apply to the raw materials in the collections (whether in the form of audio recordings or paper transcriptions) and to the "processed" materials as they appeared in print.

The Lomaxes were by no means alone in this practice, of course, but editors who fail to specify their own interventions, and to identify the source(s) of introduced material, are failing in their duty both to scholars and to singers; however worthwhile the end result from an aesthetic point of view, it can in many cases be quite impossible to tell if it is genuine or, in effect, a forgery (as witness the problematic nature of John Jacob Niles' materials, and his notable inconsistencies over issues of attribution and authorship).

I'm afraid that this doesn't address the original question materially, but it does raise another aspect of the issue that doesn't seem to have been looked into in the kind of depth that it perhaps ought to be.

Subject: RE: Questions Re: the Lomaxes and Copyright
From: Q (Frank Staplin)
Date: 21 Dec 03 - 08:54 PM

Correcting a muddy sentence- The Library was a repository; the Lomaxes probably retained all copyrights except for ....

Malcolm Douglas raises valid points. Some further notes, based on their editions of "Cowboy Songs":
The music for the 1910 edition of "Cowboy Songs" was prepared by Professor Henry Leberman of the Texas State Institute for the Blind. This contribution was not acknowledged until the revised edition of 1938.
For the 1938 edition, the music was revised "and/or corrected" and "not a few of the songs were taken from manuscripts furnished by both professional and amateur singers..." These contributions were not acknowledged in the book, except for a few which could not be overlooked such as "The Santa Fe Trail."
For this song, the Lomaxes printed words and music by Sherwin and Klickmann, copyrighted 1934 by Robbins Music Corp. ("all rights reserved including those of public performance for profit"). This song was written by James Grafton Rogers and copyrighted in sheet music issued in 1911. Another copyrighted version was "'Longside the Santa Fe Trail." This song and others have been saved from litigation only because "there warn't no scratch in it."

The Lomaxes admit making changes, "justified by the necessity of making them singable,..." (1938 Preface). These changes certainly could be interpreted as copyrightable arrangements.

Spiritual and Gospel songs- some copyrights are shared with the performers through the publishers.

Subject: RE: Questions Re: the Lomaxes and Copyright
From: PapaWhiskey
Date: 22 Dec 03 - 12:36 AM

I can tell you a bit about how copyrights work for software development. It seems like book and music copyrights should be similar, but I can't swear to that.

The copyright belongs to the programmer/author except in two cases. First, if there is a written agreement saying the work belongs to a party other than the author then it belongs to the named party. Second, if the programmer/author is a full-time employee then stuff written on the job belongs to his/her employer. This is called the Work-For-Hire Doctrine.

Let's say I hire a bloke as a contract programmer to write some software for me. The software belongs to him unless I have written agreement that says it belongs to me. Otherwise it belongs to him because the he's not a full-time employee.

It would be interesting to look at the Lomaxs' contract. Was there a written agreement that assigned ownership of their work? Were they were full-time federal employees with benefits and all, or just contractors?

One more icky detail: copyright laws rewritten in the 1970s and get updated all the time. The Lomaxs may have been working under different rules. Hope this is of some help.

Subject: RE: Questions Re: the Lomaxes and Copyright
From: Stilly River Sage
Date: 22 Dec 03 - 12:50 AM

The Lomax papers are in the collection of the University of Texas (Austin). The catalog shows them as housed in the Center for American History.

This sounds like an excellent question for a library archivist. From the library's staff site this might be helpful:

Head, Archives
Brenda Gunn
[e-mail]
512/495-4515

Austin is in the Central Time Zone.

SRS

Subject: RE: Questions Re: the Lomaxes and Copyright
From: GUEST,Sigurd IANAL
Date: 22 Dec 03 - 04:36 AM

I am not a lawyer

My understanding re: folk collection is that much of the copyright strength relies on the uniqueness of the find. The principle being that you have a copyright on your work. The Lomax stuff could probably be challenged by the performers they recorded and prior recordings etc... but to whatever extent they are the only source you have to attribute and pay yer dues.

Have you found impediments to using there collections? Care to share your discoveries of their rate requirements etc....

Bo

Subject: RE: Questions Re: the Lomaxes and Copyright
From: JohnInKansas
Date: 22 Dec 03 - 05:55 AM

A comment on PapaWhiskey's note (22 Dec 03 - 12:36 AM ):

Many employers require virtually all employees (especially technical and/or "knowledge" skilled workers) to sign an agreement giving the employer ownership of virtually all patentable and/or copyright eligible material produced by the employee regardless of whether it is produced on company time and/or using company resources.

A very few states have laws exempting work done by an employee on his own time and with his own resources from such agreements; but in general the agreements have been upheld except in those few states - and only if the person doing the work can meet fairly strict standards of proof for showing that the company made no contribution to the work.

In other words, someone working (full time means only a specified number of hours per week, usually) for a company, but doing consulting as a "second occupation" could find his employer claiming ownership of work he produced for someone else - as a consultant. Full time employment is taken rather loosely, and employers have, for example, attempted to claim ownership of a student's thesis work (even when funded under a Federal research grant through the school) based on his/her "part time" employment agreement.

With respect to the Lomax works, there are some comments included in Traditional American Folk Songs: from the Anne & Frank Warner Collection, by Anne Warner (with Foreword by Alan Lomax), Syracuse University Press, 1984, ISBN 0-8156-0185-9, implying some bitterness on the part of Frank Warner over some songs he contributed to the LOC, that were taken and incorporated into the Lomax (and other) "copyrighted" publications. Unfortunately, you pretty much have to read the whole book to get the "flavor" of the feeling(s); but it's an excellent one to spend some time with.

A brief comment at the end of the "Acknowledgments" cites the Warner's "experience with 'Tom Dooley'" as a key to Frank Warner's decision to copyright songs collected later in his career, and some especially pertinent info may be found with the material in the book on Frank Proffitt, who supplied that song to Frank Warner, who passed it on to Alan Lomax. You don't get the whole sense of it from that one selection; but writing papers does mean doing research...

John

Subject: RE: Questions Re: the Lomaxes and Copyright
From: GUEST,E. Friedman
Date: 08 Jan 11 - 02:37 PM

Though this is a dead thread, perhaps someone will look at it. The questions above have now been answered in depth John Szwed's fascinating new biography, "The Man Who Recorded the World: a biography of Alan Lomax" (201l).

As someone mentioned above, copyright law has changed a great deal since the beginning of the twentieth century, when copyright ownership only lasted for 17 years.

Also, people should be aware that music publishing copyright law is a separate division of copyright law. It dates back to the sheet music era and is entirely different from printed matter copyright. With music publishing, the royalties are collected and disbursed by an independent entity called a "Music Publisher" who takes half the money collected as an administrative payment. The other half is divided among composers and performers producers and managers, typically. In addition, record companies, no matter how small, are required to pay a small fee is paid to the music publisher for every record they wish to manufacture, regardless of whether it is ultimately sold or distributed. These added fees are called "mechanical rights" and can constitute quite a bonanza for the music publisher and a burden for anyone contemplating issuing a record.

See Rian Malan's expose in Rolling Stone (later made into a documentary film) reprinted here: http://www.3rdearmusic.com/forum/mbube2.html

The implication drawn from Malan's article is that performers like Pete Seeger and collectors and scholars like John and Alan Lomax, who brought folk music to millions and made comparatively little money from it, have been unfairly singled out for opprobrium, while big publishing companies who made millions were allowed to fly under the radar.

A useful summary: http://en.wikipedia.org/wiki/The_Lion_Sleeps_Tonight

See also wikipedia article on Tin Pan Alley, which states:
"When tunes were purchased from unknowns with no previous hits, the name of someone with the [music publishing] firm was often added as co-composer (in order to keep a higher percentage of royalties within the firm), or all rights to the song were purchased outright for a flat fee (including rights to put someone else's name on the sheet music as the composer)."

Tin Pan Alley songs, which originated as sheet music, also avoided blue notes, improvisation, and the complicated or syncopated rhythm changes that characterized authentic jazz and folk music, in favor of something that fit more easily into conventional musical notation, the wikipedia article states.

Subject: RE: Questions Re: the Lomaxes and Copyright
From: GUEST,E. Friedman
Date: 08 Jan 11 - 06:12 PM

Szwed's account of the copyright question

Subject: RE: Questions Re: the Lomaxes and Copyright
From: Desert Dancer
Date: 01 Sep 11 - 12:54 PM

Jay-Z and Alan Lomax

An interesting blog post subtitled, "Why does folk music collector Alan Lomax have a copyright interest in "Takeover" by Jay-Z?" on copyright in the context of music sampling/remix/mashup culture. Check the final diagram of the relationships.

~ Becky in Long Beach

Subject: RE: Questions Re: the Lomaxes and Copyright
From: dick greenhaus
Date: 01 Sep 11 - 01:43 PM

a copyright is likea claim was back in the old gold-mining days. It means nothing unless challenged, and successfully defended. I guess anyone could copyright the alphabet, for all the good it would do him.
UNlike patents, there's no prior invstigation.

Subject: RE: Questions Re: the Lomaxes and Copyright
From: GUEST,eFriedman
Date: 17 Jul 12 - 07:27 PM

This obituary of the late Howie Richmond explains the music publishing business -- something that even performers failed to understand. It does not mention the mechanical rights that accrued to the music publishers but otherwise is right on target. In the 1950s Richmond made a fortune copyrighting (using pseudonyms and subsidiary publishing firms) songs collected by the Lomaxes and published in their (copyrighted) books by claiming that the Lomax copyrights were not valid.

http://www.nytimes.com/2012/05/29/arts/music/howie-richmond-music-publisher-dies-at-94.html

Subject: RE: Questions Re: the Lomaxes and Copyright
From: GUEST,.gargoyle
Date: 17 Jul 12 - 11:47 PM

THANK YOU   Friedman.

WONDERFUL RESOURCE..

Sincerely,
Gargoyle

   You have provided grist for "the mill - to grind fine.

Subject: RE: Questions Re: the Lomaxes and Copyright
From: GUEST,Lighter
Date: 18 Jul 12 - 08:46 AM

I bet I'm the last one left who still gets the creeps when the word "stable" is applied to creative people (singers, songwriters, actors, etc.) whose talents yield profits for an aggressive entrepeneur (who often has "groomed" them).

Subject: RE: Questions Re: the Lomaxes and Copyright
From: GUEST,highlandman at work
Date: 18 Jul 12 - 11:30 AM

Sorry, Lighter, you lose... I despise that too. -Glenn