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Should a folk song collector be able to copyright a traditional song?

Discussion in 'Music Corner' started by Folknik, Apr 6, 2015.

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  1. Folknik

    Folknik Forum Resident Thread Starter

    The thread about whether a song should become public domain after the composer's death sent me pondering this question. I have always felt that traditional folk songs of unknown origin belong to the people and should remain in the public domain. However, there are aspects of the copyright law that allow collectors of some of these songs to register copyrights on them and collect royalties. Jean Ritchie's father collected the traditional "Nottamun Town" from a ballad singer in Kentucky. He may not have been the first to collect the song, but he was the first to register a copyright on it with the Library of Congress. When Bob Dylan wrote the lyrics to "Masters of War", he used the tune of "Nottamun Town", assuming it was public domain. After he recorded it, Jean Ritchie sued him for the royalties. The Kingston Trio and others would often change a few words of a folk song or tweak the arrangement, then say they wrote it and collect royalties on it. The Trio actually ran into a lawsuit from Fred Hellerman of the Weavers after they recorded "When the Saints Go Marching In" which is traditional, but they included an extra verse that had been written by Hellerman. It sometimes becomes a case of "You can't steal that song because I stole it first." I've always been of the opinion that the copyright law should be amended so that no song of unknown origin can be copyrighted by anyone who didn't actually write it. If someone makes minor adaptations to the words or music, I think it should be considered part of the folk process and remain in the public domain. However, there are problems with this view. In the early '60s, there was a folk group who signed their names to a traditional song and received royalties for it (I think it may have been the Tarriers with "The Banana Boat Song"), but Alan Lomax, who had collected the song, was unable to raise enough money to go on another song collecting trip. This led Lomax to start copyrighting songs he collected. Pete Seeger suggested that the royalties of public domain material should go into a public domain fund which could be used for projects like funding collecting trips. It gets very complicated. Any thoughts?
     
    ShawnX, JL6161, longaway and 2 others like this.
  2. quakerparrot67

    quakerparrot67 Forum Resident

    Location:
    tucson, az.
    no. no-one should be able to collect royalties for intellectual property that they did not creat, unless it is an immediate descendant of the creator. those traditional songs are part of the COMMON heritage and shold be treated as such. also, seeger's idea has some merit. it would create a fund to help preserve musical heritage that otherwise would be lost. not everything is there for someone to make money out of.


    cheers,
    rob
     
  3. Rfreeman

    Rfreeman Forum Resident

    Location:
    Lawrenceville, NJ
    If you add original work to public domain material you should be able to copyright the original material you add to that. Without this you could never copyright any song that used a chord progression or rhythm or couple note melodic motif anyone had ever used before. And a writer could never copyright a book or movie in which a character said a phrase that had been said by someone else before. Meaning you could really only copyright avant garde music and nothing that most folks would consider a catchy tune and could never have copyright prose in which characters spoke like normal people.

    Also note that registering something for copyright does not create a presumption that the copyright is valid it only provides evidence of the date on which you claimed the copyright. If there were any presumption of validity attached, a thorough examination of prior art would need to be done at time of registration, which would increase the costs of such registration from the roughly 30 currently charged to the thousands charged for patent or trademark registrations for which such examinations are done. Meaning no amateurs could get copyrights at all.

    Validity of a copyright is determined only when someone tries to enforce it and someone contests that attempt.
     
    Last edited: Apr 7, 2015
    ShawnX, IronWaffle and quakerparrot67 like this.
  4. tcbtcb

    tcbtcb Forum Resident

    Location:
    sugar hill nh usa
    No.
     
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  5. Folknik

    Folknik Forum Resident Thread Starter

    Chord progressions can't be copyrighted, but if someone keeps the title and overall musical/lyrical structure of a folk song but changes a few words or adds a verse, I'm of the opinion that it should be treated as part of the folk process which has been going on for centuries, long before there were copyrights. I added some new words to "Peggy-O' and "The Golden Vanity" just to fill in a couple of holes in the stories, but I haven't registered any copyrights on them. If by chance anyone hears my versions and uses my verses, the folk process lives on. That's just my take on it.
     
    dumangl, JL6161, Moth and 2 others like this.
  6. drasil

    drasil Former Resident

    Location:
    NYC
    I always thought that was the whole
    point. then the acquisition of that song becomes part of the story for the next player--I'm hearing Pete Seeger on rainbow quest: 'now, the next song I first learned from a man in...'
     
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  7. The Wanderer

    The Wanderer Seeker of Truth

    Location:
    NYC
    Public Domain traditional works should not be hijacked.
     
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  8. alchemy

    alchemy Forum Resident

    Location:
    Sterling, VA
    Yes, Somebody is going to do. Hopefully with his royalties he plows it back into collecting more songs,
     
    Folknik likes this.
  9. Rfreeman

    Rfreeman Forum Resident

    Location:
    Lawrenceville, NJ
    The only reason that chord progressions cannot be copyrighted is that they are deemed to be public domain. Just like the other things you mention. Most creativity consists of original additions to PD material and the same arguments that IP protection encourages and rewards creativity apply to such creativity as apply to any theoretical creative developments (I am skeptical that any exists) which do not incorporate PD material.

    Keeping a title is even less relevant as song titles can't even be copyrighted. Copying someone's song title does not constitute infringement. And most folk songs go by multiple titles, none of them copyrighted.

    FWIW I got a BA and MA in Folklore before getting a JD with an IP focus, so I appreciate the value of the folk process. I just don't feel contemporary contributors to that process should go unrewarded.
     
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  10. carrolls

    carrolls Forum Resident

    Location:
    Dublin
    Does John Lennon's estate own the copyrights to the tune of happy "Xmas War is Over"?
    If they do, this is wrong. It is an 18th Century English folk tune.
     
    longaway likes this.
  11. Rfreeman

    Rfreeman Forum Resident

    Location:
    Lawrenceville, NJ
    It is never clear what is owned until someone takes an alleged infringer to court, but clearly if they tried to sue someone for infringement it would be a strong defense to point out that the tune existed as PD material prior to Lennon 's copyright registration. And most likely the suit against an infringer would never be brought they would spend lots of money bringing a court case they are likely to lose.
     
    Zeki likes this.
  12. Folknik

    Folknik Forum Resident Thread Starter

    Recordings of the traditional "Stewball" that predate Lennon's song could be easily presented in court if it came to that. As was previously mentioned, song titles can't be copyrighted, but if someone recorded an instrumental version of this song and used the title "Happy Xmas (War Is Over)", Lennon's estate could collect royalties. If they titled it "Stewball", it would be public domain.
     
    bleachershane likes this.
  13. David G.

    David G. Forum Resident

    Location:
    Austin, TX
    I'm not sure how this works with popular music, but in the world of classical music, you can copyright an arrangement of a "traditional" song -- or any song, for that matter. A new arrangement of something by, say, Mozart, can be copyrighted by the arranger. You're not exactly copyrighting the tune so much as you're copyrighting what you've done with the tune, to put it in layman's terms.
     
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  14. Rfreeman

    Rfreeman Forum Resident

    Location:
    Lawrenceville, NJ
    Same holds true in pop music regarding copyrighting arrangements of PD songs
     
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  15. StephenDedalus

    StephenDedalus Forum Resident

    Location:
    Belfast, Ireland
    Hell no
     
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  16. Rfreeman

    Rfreeman Forum Resident

    Location:
    Lawrenceville, NJ
    The default would be that they could collect royalties as it would go unquestioned unless someone brought a legal challenge. If a legal challenge were brought, they could likely defeat the claim that royalties were due by showing the tune was not original, unless they also copied melodic elements unique to the Lennon song, like the "war is over if you want it" countermelody.
     
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  17. RayS

    RayS A Little Bit Older and a Little Bit Slower

    Location:
    Out of My Element
    I'm intrigued. Please share.
     
  18. JL6161

    JL6161 Forum Resident

    Location:
    Michigan, USA
    No, they should not.

    And let's everyone be clear about the specific topic here: we're talking about folklore collectors, not songwriters, singers, or performers who actually contribute to the content of the artwork in question. That stuff gets complicated, but a collector goes out, locates folk culture performers, and collects the cultural item for preservation, archiving, and study by making a field recording (audio or video) of a performance, transcribing lyrics, taking photos, having the performer write down a text, etc.

    Claiming intellectual property rights on artwork or ideas you know you did not actually create is pretty much 100% contrary to the core values and purposes of folkloristics as a discipline. It's a violation of the public trust and of fundamental principles of academic fair use. But then, folklore studies in general is just full of ethical minefields.
     
    Last edited: Apr 7, 2015
  19. JL6161

    JL6161 Forum Resident

    Location:
    Michigan, USA
    If I could like a post more than once, I would like this post 27 more times.
     
  20. RayS

    RayS A Little Bit Older and a Little Bit Slower

    Location:
    Out of My Element
    I thought Seeger's idea was that folk song performances should be utilized in tax preparation service TV commercials. Oh, you meant PETE Seeger.
     
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  21. Folknik

    Folknik Forum Resident Thread Starter

    Added to the middle of "Peggy-O" (after the "I cannot marry you, Sweet William-O" verse):
    Sweet William took his leave of pretty Peggy-O
    Sweet William took his leave of pretty Peggy-O
    Sweet William took his leave and he ran away to grieve
    And we've searched for him all over Fennario.
    The traditional "Sweet William is dead" verse would follow here. I recast the last verse from the point of view of the soldiers who had been fond of their captain, the "Sweet William" who had been spurned by Peggy-O:
    If ever WE return to Fennario, If ever we return, pretty Peggy-O
    If ever we return, your city we will burn, and ravish all the ladies in the areo.

    I added this verse to the end of "The Golden Vanity" to give the song a sense of impending poetic justice:
    So now there is a ship and she sails upon the sea
    But she sails without a cabin boy the age of 12 and 3
    And now the captain fears the crew for there's talk of mutiny
    And they'll sink him in the lowlands, lowlands low
    They'll sink him in the lowland sea.
     
    Last edited: Apr 7, 2015
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  22. RayS

    RayS A Little Bit Older and a Little Bit Slower

    Location:
    Out of My Element
    That's pretty cool. I've heard Dylan do "Golden Vanity" but I'm less familiar with that song than the ubiquitous "Peggy-o". Interesting that you remove the villain mantle from Sweet William.
     
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  23. dumangl

    dumangl Senior Member

    Absolutely not. The concept is repugnant.
     
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  24. Folknik

    Folknik Forum Resident Thread Starter

    Early classical works through the 19th and early 20th century are in the public domain. It's very easy (though not necessarily ethical) to steal from these long dead composers and not give them credit, as in the Toys' "Lover's Concerto" which was just Bach's "Minuet in G" with a beat and newly written lyrics. The whole song was credited to Linzer and Randell with no credit given to Bach. At least Barry Manilow gave credit to Chopin for the melody of "Could It Be Magic."
    A year or so after "A Lover's Concerto" hit the charts, there was a cash-in Batman album of instrumentals credited to "Dan and Dale" (actually Sun Ra and members of the Blues Project). It included a tune titled "The Bat Cave" which was "Minuet in G" using the "Lover's Concerto" arrangement without the lyrics. I don't think there was any lawsuit over the arrangement.
     
    Last edited: Apr 7, 2015
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  25. Rfreeman

    Rfreeman Forum Resident

    Location:
    Lawrenceville, NJ
    Clearly you cannot have a valid copyright in anything you did not actually create, even if you register it for copyright. But proving what was preexisting material is challenging.

    The OP raised two separate situations. One of merely collecting and one of adding something to the material.

    Even in merely collecting however an archivist could make a copyrightable contribution if he decided to publish only say 5 stanzas when there were 50 variations floating around orally. But his co Pyro ght would extend only to the selection and sequencing of those stanzas, not the stanzas themselves.
     
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