Raymond Horton wrote:
[snip]
Do I need her permission to use her versions of these old, traditional
tunes?
Two of her homemade CDs which she sells are labeled: "copywrite (sic)
19xx" (no circle c). A third CD is more commercial looking, but I
recall it as similarly mislabeled (I can't locate it right now). A
cassette is not labeled Copyright at all. Most of my needs are met by
the home-made CDs and cassette (she keeps repeating the same traditional
songs, with minor variations, and adding originals in which I am not
interested).
I remember learning that recorded works are not copyright-able, only
scores are. Is that still the case? If not, then these recordings are
her arrangements. If so, they have to be considered PD. I know for a
fact that she does not have scores, does not read music, because she
mentioned she has treasured notebooks with the words to all of these songs.
The other, older recordings (not hers) have most of these same tunes,
but hers are more melismatic. I would like to be able to draw from all
of them.
I do not want to rip her off. I had intended to write her a letter,
spelling everything out, but she called me yesterday to tell me my check
made it there ok, and I made the mistake of trying to ask her on the
phone, only confusing her. (As with all Amish/former Amish, English is
not her first language. She thought a composer paints pictures.) My
request worried her, ("I don't want to give up any of my rights") and
she is going to have her "English" husband call me on Tuesday.
I will not likely make much, if any money, from this work, so I can't
really offer any cash. I could offer them like 5% or 10% of the
profits, telling them (a) there might not be any, and (b) they will have
to trust me.
The recordings may not be copyrighted, but that just means that you can
make copies of the recordings. All the copyrights in the music itself
still stand, even if the recording itself isn't copyrighted.
In other words, you could probably duplicate the tapes and not pay her a
penny as artist, but you would owe her the mechanical reproduction
royalties as she is the composer of the music recorded on them.
Aaron Copland "borrowed" pretty wholeheartedly from a Library of
Congress recording of Bonaparte's Retreat for Hoedown, and I've never
seen any credits given to the fiddler who made the recording -- I had
the great good fortune to hear the recording on the radio, and one
single person playing the fiddle played all the notes that Copland took
a whole orchestra to play (and they have problems!). So if he could do
that, you might be able to do the same. However the morality of it
would dictate that you come to some understanding with the woman. And
these days the legality would dictate some sort of legal contract with
her also. When Copland borrowed the music for Hoedown, music was only
copyrighted when it was written down and registered with the Library of
Congress and each copy of it had to bear the copyright notice, so what
Copland did was legal even if not really moral.
As for you making money on this project, you may not make much from
future sales, but you've already made some money, so maybe you could
offer a one-time payment and a percentage of future profits.
It's a sticky situation, especially now that you've opened the door to
the payment of royalties. Is there any way from the various yodels
you've heard that you could take a folk song and create your own version
without stepping on her music? At the very least, whatever contract you
sign with her should stipulate that aside from your quotation of her
yodels in your work, she retains all rights to her music.
Good luck -- this is where an attorney might be a good idea.
--
David H. Bailey
[EMAIL PROTECTED]
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