I understand that the TUNE of "Happy Birthday," that is "Good Morning To
You" - is PD. It's when it's coupled with the words of "Happy Birthday"
that the copyright comes into play, correct? (Louisville being the home
town of the Hill Sisters who wrote this little ditty, the most often
sung tune in the world, I believe.)
Ray Horton
Floyds Knobs, Indiana
Louisville Orchestra
dhbailey wrote:
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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