At 11:58 PM -0500 3/5/07, Raymond Horton wrote:
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.
If you KNOW that (and can document it), you're home free regarding
copyright on the songs themselves.
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).
Agreed that she doesn't own the songs (if your chronology is
correct). And with that timeline she DOES own the recordings (which
constitute "fixed form" even though the originals are probably PD).
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?
If it is established that the songs ARE PD, neither she nor anyone
else can claim to OWN them, although there might be a claim to a new
arrangement or edition entitled to its own copyright. (Not an
edition, come to think of it, since that implies a printed version.)
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?
OK, first thing, Alan (born 1915) and his father, John Lomax, were
part of the Depression-Era team collecting folk songs for the Archive
of Folk Culture of the Library of Congress under the government
office supervised by Charles Seeger. Charles' wife, Ruth Crawford
Seeger, a very talented and up and coming serious 20th century
composer, was tasked to transcribe the field recordings, and has
written about the difficulty of doing so since traditional singers
never sing two verses exactly the same, or the same as any other
singer! That is the family that produced the siblings and cousins
including Pete Seeger, who is world famous, and Michael and his
sister, who never achieved that kind of fame.
Alan Lomax is VERY well known to Kodaly teachers, since one of
Kodaly's fundamental beliefs was that the folk songs of a culture are
the musical "mother tongue" of that culture. (And Kodaly teachers in
North America have special problems since the culture is polyglot,
polycultural, and only a couple of centuries old, unlike the more
insular cultures of Europe.) And because he did publish some of the
songs that were collected for the Archive of Folk Culture, he claimed
and continued to claim until his dying day that HE OWNS EVERY FOLK
SONG HE PUBLISHED, and is entitled to control and profit from their
use.
Just a couple of problems with that claim, starting with the fact
that he totally misunderstood copyright law. First, all those field
recordings were collected by and for the government, and BY LAW are
public domain. Second, the songs themselves, as documented folk
songs, are public domain anyway. And third, NO ONE can claim
ownership of a song once in the public domain, although new
arrangements and new editions can be copyrighted. (That's what Lomax
never understood.)
Another thought:
For another way of thinking of these yodels, compare them to theme
and variations, like "Carnival of Venice." For each of these
tunes, everybody (Amish) in Adams County sings the tune, then does
variations (the yodels). Everybody knows "Carnival of Venice, "
nobody owns it, but Arbans wrote the best set of variations, but his
might have been based on earlier ones. Fannie K. (the woman on the
recordings) is the Arban of the yodels, but her versions only exist
on records. Even if she owns her set of variations, which she
might, does she own "Carnival of Venice?"
No, she cannot own the songs she recorded. She CAN own her own
recordings. The question is then whether the (improvised)
performances she recorded can be copyrighted, and to answer that
question I would go not to "Carnival of Venice" (which is no folk
song and was written by someone, even though I can't tell you who).
I would go instead to the situation with improvised jazz recordings,
where the recording itself can be copyrighted (since 1972 or
whenever), but the improvisation cannot.
(And if I'm wrong about that, I hope our jazz experts will put me straight!)
But if you just intend to use her recording as a copy source, I think
you're probably clear. (What I'm REALLY curious about is how you're
going to represent the register break that's at the heart of yodeling
instrumentally!!)
John
--
John & Susie Howell
Virginia Tech Department of Music
Blacksburg, Virginia, U.S.A 24061-0240
Vox (540) 231-8411 Fax (540) 231-5034
(mailto:[EMAIL PROTECTED])
http://www.music.vt.edu/faculty/howell/howell.html
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