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

thank you.

cheers,
rob

 

just watched a youtube vid of the toys' song t see if it's the song i thought i remembered, and at the start of the video there is a bust of some 18th century looking guy who i believe might be bach. just had to laugh...



cheers,
rob

 

A collector copyrighting a song is totally wrong. It should not be allowed.

A collector might be able to copyright a sequence. Harry Smith and/or the Smithsonian might be able to copyright the specific collection of songs in the Anthology of American Folk Music box set but that would be it. I don't think their copyright would extend to the songs themselves, only the way in which they were presented. I do know a fine artist can copyright a collage made up of works previously copyrighted by others. It seems to me that a musical collection would fall under that exception. Clarification by a copyright attorney would be good here.

 

Cool!!! That's Bach all right. This was someone's way of giving the great master credit for the tune.

 

I am a copyright attorney, and a folklorist (with 2 degrees in that field) and agree with your interpretation.

But, as I also noted above, if a collector collected 50 verses of a traditional ballad from various sources, and selected 5-10 of them which he thought worked well in a specific sequence to tell the story more cohesively, he should be able to have a copyright in the selection and arrangement of those verses - much as with the collage example you noted. If he had such a copyright he would not be able to use it to successfully bring a claim against someone else who used a few of those verses as part of their own composition (just like a collage artist could not successfully bring a claim against someone who reused one of the pictures in their collage if that picture was made by someone else), but they would have a claim against someone who used the identical selection and arrangement of verses.

 

I think you need to be able to show that the arrangement is substantially different/unique enough to qualify for this.

When I was in junior high school, I had written a letter to John Fogerty asking (among other things) about the credit for "The Midnight Special" in a Creedence Clearwater Revival Complete sheet music book I had purchased. It gave J.C. Fogerty as the composer. He responded that his publisher had applied for copyright based on the premise that the arrangement was substantially different and the book went to press under the assumption that they would be successful in their application. They were turned down. He said it was an embarrassment to him and that no one had pointed it out "in a letter anyway"... oops

 

You don't need to show anything at all to get a registration. You just have to pay $35. And it proves nothing other than that you claimed to have a copyright in it on that date.

If you want to sue someone for infringement, you have to demonstrate what elements in the arrangement you have a copyright in and that someone else infringed them.

It is very uncommon for anyone to sue anyone else based on an arrangement copyright as it is very difficult to show what was added, unless it is a radical re-arrangement. For example Hendrix's arrangement of the SSB.

People generally make the arrangement copyright claim not to stop others from recording the song, but because it entitles them to songwriter royalties via ASCAP/BMI/SESAC and their record company for use of their recording of the song. And there's nothing wrong with that.

 

At the time, I figured that Fogerty's publisher had advised him to copyright the arrangement so that he would collect composer royalties for that song from the sale of the "Willy and the Poorboys" album. I would assume they paid the $35 or whatever the fee may have been at that point, but according to Fogerty, they were turned down...

 

Either Fogerty was wrong about them being turned down (most likely answer I would guess) or they did something dumb like forgetting to sign the application, using the wrong form, checking the wrong box (perhaps applying for a copyright as a composer rather than the arranger was the issue - not sure if there were separate boxes or forms for this at that time), or writing a check for the wrong amount.

They do no review whatsoever of copyright applications to see if there is any validity to the claim of copyright. If the Library of Congress were paying people to do any sort of review, the cost to register something would be vastly greater.

 

Nope.

At best, the credit should read: "Trad. Arranged by [Insert Artist's Name Here}

 

I think in a lot of cases there's plenty wrong with that regardless of what's legal and permissible. First, a lot of this sort of behavior reeks of people more or less scamming their way into undeserved credit, fame, power, and sometimes money. And mind you, I say this as someone whose job includes providing support services for other people who do actual creative work, so I get how hard and thankless that can be. If your work supports, enables, facilitates, etc. the creative efforts of others, you deserve huge admiration and a decent wage and pat on the back for that. But the person who does the page layout of a newspaper should not get the Pulitzer Prize for investigative journalism. Hosing down the Lincoln Memorial or restoring the Mona Lisa doesn't make you Daniel French or DaVinci. I love Amazon warehouse workers and UPS drivers for bringing piles of records to my house, but packaging, transporting, or delivering art doesn't entitle them to collect royalties.

To paraphrase Dave Marsh (in a rare moment of lucidity), we shouldn't celebrate the milkman more than the milk, and we should definitely not be encouraging milkmen to go around proclaiming vaingloriously that they're actually dairy farmers or cows. But that's exactly what we do, culturally. We have CD covers like this:



where the only visible human name is not one of the performers or composers but the guy who pushed a "record" button and held a microphone.

You can make a case for or against whether Huddie Ledbetter should have an author or arranger (or neither) copyright for "Goodnight, Irene," and we can have an edifying nuanced discussion about the intricacies of that and all its interesting repercussions and implications. But "Goodnight, Irene" should absolutely not have John A. Lomax listed as its co-author, which it does (or did, some versions, for a long time) or even arranger because that's just outright false and sh!tty.

And lest we fall for the old "oh, everybody back then did that; they didn't share our enlightened cultural awareness," they absolutely did know that it was problematic. Alan Lomax came right out and said in 1962, "My reputation has suffered severely but, at the same time, I have established it in the minds of at least some of the decent people in the field that the collector as well as the source should get at least some of the royalties now commonly paid by recording companies for versions of folk songs" [emphasis added].

Second, there are admittedly lots of cases where a collector claiming (arranger or author) copyright and getting royalties has genuinely contributed to the creative artistic process in some way and is technically entitled to a bit of credit. However, as others have noted, someone engaged professionally in folklore collection and study absolutely understands that their individual contribution to a living, circulating item of folk culture in process is nothing special or noteworthy; it's just part of the fabric of folk culture. People who really want and seek individual credit for that type of thing make me think, "Did you like sleep through all your folkloristics classes and cheat off your buddy's exams, or what? Did you attend some sort of fly-by-night DeVry Folklore Studies Tech diploma mill in a strip mall?"

If you want to be paid in some way for your labor in contributing to the folk process, fine, great, go for it. But those who claim individual copyright and/or collect royalties on the song or recording or whatever are not merely getting paid. They are taking a chunk of the public commons out of our collective shared ownership and sticking a "Private Property" sign on it. If some singer or guitar player or other creative artist does that as part of what they need to do to make a living in the arts, I can deal with that. People gotta eat. But when a folklorist does it, well, this is someone who probably is doing OK income-wise, knows what's at stake, ostensibly cares about the public good, appreciates common culture, celebrates anonymous and collective authorship and amateurism, etc. Somebody you might reasonably expect to say, "Pffffft, don't need no copyright credit just for shuffling a few stanzas around," especially in light of how broadly harmful that can be, and go on about their business.

Anyhow, we're all complicit in the trend of every f@cking thing being commodified, monetized, homogenized, and generally carved up into little piles of mine-mine-mine that we can all then guard jealously from nasty tricksy hobbitses until the end of time, and other people are free to claim whatever copyright they can get away with. I try to avoid doing crap like that when I can, but YMMV.

 

There is an extremely low standard for what can be copyrighted. The dividing line is commonly articulated as the line between the white pages and the yellow pages. There is no copyrightable creativity in alphabetizing the white pages but there is copyrightable creativity in determining the categories to be alphabetized in the yellow pages (e.g. whether to have a catecory for auto dealers or car dealers). This is well established law.

By that standard there is no question that copyrightable creativity can go into arranging a public domain song or lyric. Clearly some have claimed or denied credit inappropriately, but it is equally clear that some deserve credit for arrangements of public domain elements.

And really the whole justification for things eventually passing into the public domain is for those things to become elements to be used in future works by creative people. And it is because our society valued such creativity, that we give such creators copyrights in their works.

As to your closing suggestion that you detest all private property ownership, the idea of doing away with all private property is a nice utopian fantasy but beyond the scope of this discussion and probably not consistent with our avoiding discussions of politics on this forum.

 

What? There's a pretty obvious difference between saying "not everything should be privatized" and saying "everything should be public/common." It's actually possible to, you know, own stuff and enjoy owning stuff, as I do, while also thinking that public parks are a good thing.

 

Good to hear it, it was tough to tell that from the closing paragraph of your prior post. I think folks who make creative contributions to society are at least as entitled to own the things they add to society as anyone else is entitled to own their homes, wages and bank accounts.

 

I think we're focusing on two different but obviously overlapping elements or angles of the topic. You're focusing primarily on the rights of creative people, which I endorse as strongly as you do, and how to protect those, and what's legal and permissible in intellectual property law, all of which is your area of interest and expertise. I'm focusing on the ethical responsibilities and choices of professional folklorists in terms of their duties within the discipline, to the public, etc., and the ongoing conversations in the field about that. A creative person who isn't a professional folklorist isn't held to those ethical standards, just like how it's more or less OK for me as a layperson to give someone terrible legal advice, but a member of the American Bar Association is expected not to.

And that all gets really fun and complicated when the same person is both a creative artist and a professional folklorist.

 

There was one well known complex situation which I think is a good example


Dylan (With God On Our Side) was sorta sued by Dominic Behan, who wrote and composed the famous irish ballad "The Patriot Game", (copyrighted) and there was little doubt that WGOOS was a copy of The Patriot Game, but then it turned out that there was a trad version in the Appalachian mountain area from a while back and that version had come all the way from Scotland or North of Ireland.

There are some trad folk songs in England which carried the same tune, ' The Nightingales Sing', 'The Merry Month of May"
The tune is common enough, but Behan did change the lyrics to being sarcastic and the tone became anti-war.

With God on her side Bob Dylan


The country I come from is called the Midwest
I was taught and brought up there, all the laws to abide
And that land that I live in has God on its side


Patriot Game - Dominic Behan sung by Liam Clancy

https://www.youtube.com/watch?v=RQBW6UQa8Fc
Come all ye young rebels, and list while I sing,
For the love of one's country is a terrible thing.
It banishes fear with the speed of a flame,
And it makes us all part of the patriot game.

The likely source for the lyrics to Behan's version is this one from the 19C

Come All You Young Protestants (Probably from North Ireland)

Come all you young Protestants and list while I sing,
The love of old Ulster is a wonderful thing,
We'll fight to defend her, with tooth and with nail,
And we will make certain the truth will prevail.

It's a proof positive case that Dylan's WGOOS is a bona fide trad arrangement, but there's a good case to argue that Dylan copied the anti-war tone that Behan brought into the song, but that would hardly be grounds for any infringement. That's just quite normal in the world of trad arrangements and songs.

 

I agree wholeheartedly that it is important for folklorists to give credit where it is due and not seek to take undue credit themselves. And that folks like the Lomaxes did things in their day in this regard that would not be deemed appropriate today.

But the world is nonetheless a much richer place for the work they did, and I think the most appropriate remedy is for courts enforcing the copyrights to only deem them applicable to the elements they added to what they collected and not to the underlying materials.

There is some value to the idea of a collective copyright which might for example give a tribe as a collective ownership of its cultural products where individual authorship is not discernable. Though that would take significant material out of the public domain.

 

I once did some legal work demonstrating that the lyrics to Barney the Dinosaurs theme song had public domain origins when someone was arguing that these lyrics infringed their copyright. Which was gratifying as a way of merging my Folklore and IP expertise.

 

Dylan treads some pretty dangerous ground. His "Beyond the Horizon" from the Modern Times album used the melody of "Red Sails In the Sunset", a copyrighted song from 1935. I'm surprised there hasn't been a lawsuit over that one.

 

Good point. And part of the evolution of our thinking on all this stuff is coming up with novel approaches, compromises, and options -- like Creative Commons, too. Stuff doesn't have to be strictly a) private or b) public; there are lots of other ways of conceiving and handling ownership, access, rights vs. responsibilities in different situations or based on the preferences of the particular people involved.

 

Yeah, cribbing lines from a Japanese novel is also not usually considered "participating in the folk process."

 

The Modern Times album is heinous in that regard. He claims sole authorship of "Rollin and Tumblin" and "The Levee's Gonna Break"
WTF?

Makes me want to sit down and write "Knockin' on Heaven's Gate"

 

No, of course not...public domain should stay virgin.

 

It actually made me wonder about "Rollin' and Tumblin' ". I usually see that one credited to McKinley Morganfield (Muddy Waters), but is it actually a variant of a traditional folk blues?

 

I expect it is a variant of a traditional tune which would mean Dylan's claim was not legally problematic. But it nonetheless is basically plagiarism for him to state that the song is "written by Bob Dylan" on the album sleeve.

Nobody could sue me for stating I wrote Beethoven's 5th either, but that doesn't make it acceptable to falsely assume credit for it because I added a drum machine to it.