No, no. No use of the recordings themselves. Sorry for the confusion.
I am writing an instrumental composition, using these old tunes. These
are tunes that have been sung by virtually ALL of the Amish in Adams
County, Indiana, since they came over from Switzerland around 1815. I
only have a couple of sources for the tunes, and hers are the best and
most complete.
This woman doesn't own the songs. She just yodels better than most, ("I
was yodeling before I was one year old") sings more melismatic versions
than most and has recorded them (released without the proper copyright
symbols, but within the last two decades). (Few Amish record, anyway,
of course. She left the faith as a teen to join a Pentecostal church.)
There's no copyright in the song, unless, by her making a recording of
an old folk song, slapping a "1986 copywrite 1986" [and no symbol], she
has managed to gain ownership of a formerly PD song without registering
a score anywhere. I tend to doubt that she owns these old songs. But
who knows?
They other old recordings are Alan Lomax discs from 1937. They have
some of the same songs, with simpler yodels. Same questions arise -
probably the first time these songs were recorded. So maybe my woman
would not own the songs that Lomax recorded before, or were they too
early for the 1970's law to protect?
I still would maintain that they all are PD folk songs. But in any
case, you are right about treating her right to get her permission, so
there is no problem, and no hard feelings. She is a good simple,
person. I just want to have some idea of what I'm talking about when
her husband calls me tomorrow!
Thanks,
RBH
John Howell wrote:
Too many questions remaining!!! (1) How do you plan to use the
recordings? Sampling? Using the recording itself in some way? As a
source of a particular yodel? As a source to recreate
(instrumentally?) a generic yodel based on an authentic source? And
what is/are the date(s) of the claimed copyright?
Prior to the new copryight law being phased in (which is to say under
the 1909 copyright law) the copyright notice in a very specific form
and no other form was a requirement, and anything published without it
automatically entered the public domain.
I remember learning that recorded works are not copyright-able, only
scores are. Is that still the case?
No, absolutely not, and not for quite a while. It was the case under
the 1909 law, but during the runup to the revision that was passed in
1976 and took effect in 1978 Congress finally got around to adding
copyright to recordings. But again, the form was specified, and
required p-in-a-circle (for "phonorecord") rather than c-in-a-circle.
I seem to remember 1972 as the first year in which recordings could
actually be copyrighted, but I could easily be wrong.
But that's not even the main question! There would be a copyright in
the song itself, unless it was PD. There would be a copyright in the
arrangement, unless it was old enough to be PD itself or arranged
without permission. And the actual ownership of the recording can be
a real can of worms, although probably not in this case. And of
course copyright in the recording is a copyright for the performance
on that recording.
If not, then these recordings are her arrangements. If so, they have
to be considered PD.
Why?
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.
Again, the dates, both for her recordings and for the others you
found, are crucial.
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.
Make her feel good. Make her feel that her work is valued. Ask
permission, and give her something in writing that makes it clear that
by giving you permission for whatever your use will be, she is not
giving up any of her rights.
I, like David Bailey and most others here, and am not a lawyer and
this is not legal advice.
John
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