Christopher BJ Smith wrote:
> At 4:44 PM -0400 7/03/02, David H. Bailey wrote:
>
>> Christopher BJ Smith wrote:
>>
>> [snip]
>>
>>>
>>> One exception I heard about is the estate of Jerome Kern, who blocked
>>> an entire album of Maynard Ferguson's because he had included an
>>> arrangement of "Old Man River" that the family considered to be so
>>> utterly tasteless, that they were able to have the whole album run
>>> recalled on the premise that he hadn't asked for permission to
>>> arrange it. Almost nobody DOES ask permission, because I don't think
>>> permission has EVER been refused for a recording, but it was a "gotcha".
>>>
>>
>>
>> Actually, the U.S. copyright law reads that only on first recordings
>> does the copyright holder have the right to refuse to allow the
>> recording. On subsequent recordings all that is required is the
>> payment of the mandatory mechanical reproduction fee. Copyright
>> holders may NOT refuse permission, which is why nobody ever asks.
>
>
>
> Hm. I knew that, but it always seemed like a corollary to "a prostitute
> cannot be considered to have been raped under the law, as she has
> already sold herself at least once." This (as applied to music, not
> women) is fine for commercial music, but shouldn't an artist have
> control over his/her art?
>
>
>>
>> The Kern estate may well have threatened a lawsuit over it, knowing
>> that they wouldn't win but hoping that the embarassment over such a
>> lawsuit and the airing in court of statements that the arrangement was
>> so tasteless was enough of a deterrent so the record label may have
>> pulled the record.
>
>
>
> Ah. My understanding of the law (as flawed as my understanding may be)
> is that if the recording had been of the ORIGINAL arrangement, the Kern
> estate would not have had a leg to stand on, which is why they resorted
> to the "didn't obtain permission to arrange" argument. And my
> understanding of the case is that they obtained a judge's order to
> recall the albums, not simply threatened to.
It is also my understanding that the copyright law's mandatory
subsequent recordings also permit arranging the song for the recording
without permission. That is why somebody with a quintet can record a
song and another person with a 17-piece big band can record a song and
somebody else with a full symphony can also make a recording of the same
song.
Those arrangements are not marketable on paper, but they are allowed for
recordings and performances. Royalty payments for those recordings or
performances are all that is necessary to make them legal. Selling the
arrangements for others to use, without first obtaining written
permission, is not legal.
The Kern estate may well have obtained a judge's order -- but in the
U.S. at least that doesn't mean it was a correct ruling. But the record
label may have figured they should just comply, costing less money in
the long run than a fight all the way to the Supreme Court.
And as to your remark about an artist having control over his/her art,
to a point I agree with you. But I feel that once an artist has taken a
work out of the realm of art and entered it into the business
marketplace, the rules of business apply and not the rules of art. And
the business world (including the artists who ventured into it) have
created the huge mess we call "copyright law" so that we all have to
play by the rules. It is impossible to say a particular work is
"commercial" and therefore should fall under one set of rules while
another work is "art" and therefore falls under a different set of rules.
--
David H. Bailey
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