The underlying tunes you are free to do what you want with. If they are
not available in print, however, you might have a hard time discerning
what are her inventions and what are the originl tunes. However, if you
can sort that out, you have no worries about using the underlying tunes.
Nothing published in the 1800s is still under copyright (Happy
Birthday being a well-known exception).
Just be sure you're not incorporating her personal embellishments and
you should be fine. If you can find a book of Swiss folk songs which
includes the original tunes, you'll be able to sort out her ornaments.
David H. Bailey
Raymond Horton wrote:
But what if there are NO copyrights of the music itself? None of these
tunes were ever copyrighted, that I know of. This woman has some
elaborated versions of the tunes on her recordings, but I don't believe
any notated versions exist of the traditional tunes. (They date back to
Switzerland in the 1800s at the latest. )
Thanks,
RBH
dhbailey wrote:
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.
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