Treasure Trove Of Jazz To Be Blocked, Perhaps Forever, Thanks To Copyright

from the lost-culture dept

MTGlass points us to David Post's analysis of "the high cost of copyright," in reference to an article about the inability to make available a treasure trove of classic jazz recordings that the National Jazz Museum just acquired. The problem, of course, is copyright. The museum wants to make all the works available, and jazz afficianados, like Post, are eager to hear the music, but copyright law makes it almost impossible:
Mr. Schoenberg said the museum planned to make as much as possible of the Savory collection publicly available at its Harlem home and eventually online. But the copyright status of the recorded material is complicated, which could inhibit plans to share the music. While the museum has title to Mr. Savory’s discs as physical objects, the same cannot be said of the music on the discs.

"The short answer is that ownership is unclear," said June M. Besek, executive director of the Kernochan Center for Law, Media and the Arts at the Columbia University School of Law. "There was never any arrangement for distribution of copies" in contracts between performers and radio stations in the 1930s, she explained, "because it was never envisioned that there would be such a distribution, so somewhere between the radio station and the band is where the ownership would lay."

At 70 years' remove, however, the bands, and even some of the radio networks that broadcast the performances, no longer exist, and tracking down all the heirs of the individual musicians who played in the orchestras is nearly impossible.
And don't think these works are going into the public domain any time soon either. As we recently noted, sound recordings are locked away for much longer than other copyrighted works due to some quirks in copyright law.

Post uses this as an example of the "high cost of copyright," pointing out that many people who first encounter copyright understand the supposed benefits of the monopoly privilege, but it's more difficult to understand the "cost," side. Of course, I'd argue that this is more a problem of the fact that people have been taught to believe that copyright is designed to "protect the creator," rather than the much more accurate fact that it's supposed to provide for the public. The fact that copyright law is quite clearly getting in the way of this, the intended purpose of the law, suggests that such restrictions are not, in fact, legal. This is a clear case where such a copyright restriction is not "promoting the progress," at all, and in fact hindering our access to important cultural works -- perhaps forever.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Aug 19th, 2010 @ 10:03am

    Mr. Post terribly overstates the legal aspects of this situation, but, unfortunately, he chooses to moderate comments that contradict it.

    More importantly, though, his comments regarding potential liability demostrate what I saw continuously while working with a corporation...the unerring tendency of most counsel to utterly fail to advise management on the likelihood such liability would ever come to fruition.

    If the goal of a business is to get from A to B, I cannot begin to count the number of times clients were advised to remain at A and not start a trip to B because they might hurt someone along the way. CYA reigns supreme with the law departments of many companies, with the result being that perfectly acceptable and legal ways of achieving client objectives were ignored, or even researched, and not presented as alternatives.

     

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  2.  
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    Jim Harper (profile), Aug 19th, 2010 @ 10:14am

    Re:

    I don't think Post is talking about the legal aspects as such. He's talking about the avoidance of legal risks that businesspeople, curators, and their legal advisors rightly engage in. Legal niceties don't matter for squat if someone sues you. Unclear rules fertilize risk aversion, that's what you have here, and that's Post's point.

    I wouldn't blame counsel if they advise against creating unknown thousands of potential plaintiffs, any one of whom could cost a company or project $$thousands.

     

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  3.  
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    Garrett Shelton, Aug 19th, 2010 @ 10:30am

    Re:

    I also wonder if the grey area surrounding the Wolfgang's Vault purchase of the Newport Jazz Festival archives. It wasn't entirely clearly - at least at the time it was announced - if it was actually a sellable asset of Festival Network.

    I have to believe though the Harlem Jazz Museum must have had a plan for this before they received the archive. At least I hope they did.

     

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  4.  
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    Anonymous Coward, Aug 19th, 2010 @ 10:45am

    NO PROBLEM

    This is no problem. Summon the internet to help you. Backup the music, put it on a PC at your museum and let people browse and listen to it. Turn your back. Wait for someone to attach a disk and grab all the music. The rest of the internet will make sure it gets spread so far and wide that there will be no going back. And none of it is your fault or responsibility!

     

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  5.  
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    Evostick, Aug 19th, 2010 @ 10:47am

    Place recordings in a trust (to limit legal liability)
    Make freely available
    See who comes knocking
    Basically, publish and be damned

     

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  6.  
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    Suzanne Lainson (profile), Aug 19th, 2010 @ 11:00am

    Leverage the scarcity

    Seems like this is a perfect example of using scarcity to your advantage. If you can't put the recordings online, make people come to the museum to listen to them. Even if you don't charge admission, you can have a snack bar or restaurant and make some money that way.

    I think you are going to see more examples of providing music that you can only hear when you are in a specific location. That's a way to make the listening experience special.

    Turn listening to this jazz collection into a pilgrimage.

     

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  7.  
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    Chronno S. Trigger (profile), Aug 19th, 2010 @ 11:09am

    Re: Leverage the scarcity

    They can't do that ether, I'd be considered a performance and a commercial one at that.

    It's a damn good idea, but still leaves you open to lawsuits.

     

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  8.  
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    cc (profile), Aug 19th, 2010 @ 11:15am

    Re: Leverage the scarcity

    So, copyright 1, public domain 0. A "treasure trove" of music is made inaccessible to everyone who can't travel half-way across the world to see it played on a jukebox, even when that music was recorded almost a century ago.

    A better solution is to push for better orphan works legislation that protects the museum from lawsuits or demands for damages if any rights holders come knocking.

     

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  9.  
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    Suzanne Lainson (profile), Aug 19th, 2010 @ 11:27am

    Re: Re: Leverage the scarcity

    They can't do that ether, I'd be considered a performance and a commercial one at that.

    I believe they can do that. They would need to pay ASCAP/BMI/SESAC if those organizations came calling, but playing recorded music in your venue is permitted by anyone as long as the performance licensing organizations are paid.

     

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  10.  
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    Suzanne Lainson (profile), Aug 19th, 2010 @ 11:30am

    Re: Re: Leverage the scarcity

    A better solution is to push for better orphan works legislation that protects the museum from lawsuits or demands for damages if any rights holders come knocking.

    That may be a better solution, but one that isn't going to happen anytime soon. So I'm suggesting something that could be done in the meantime and be perfectly legal.

    I do believe, however, that you will see more examples of music that can be only heard if you are in a specific location. That's the very essence of selling scarcity.

     

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  11.  
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    Suzanne Lainson (profile), Aug 19th, 2010 @ 11:37am

    Re: Re: Re: Leverage the scarcity

    I wrote performance licensing organizations, but the correct term is performance rights organizations (PROs).

     

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  12.  
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    Ron Rezendes (profile), Aug 19th, 2010 @ 11:54am

    Re: Leverage the scarcity

    I think you hit the nail on the head here Suzanne.

    While it is an unfortunate circumstance (practically criminal if you ask me!) to have happen in the first place - the legal ramifications apparently dictate that distribution is probably an area the museum doesn't want to go near. Therefore, as Mike is wont to say - sell the scarcity. The beyond-ironic thing here is that the music and its medium ARE the scarcity, this time but selling discs/tapes ISN'T an option and digital distribution can't be used as the "free" hook to sell a different scarcity. So now a visit to the museum is required but this may be the perfect time to make those t-shirts!!! The ones that say: "I listened to the Such-and-such Jazz Collection at the National Jazz Museum!"

     

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  13.  
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    cc (profile), Aug 19th, 2010 @ 11:56am

    Re: Re: Re: Leverage the scarcity

    Fair enough.

    Actually, orphan works legislation is also something of a "meantime" solution. The real problem is the ridiculous length of copyright, and fixing that almost feels impossible at the moment.

     

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  14.  
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    Free Capitalist (profile), Aug 19th, 2010 @ 11:59am

    Re: Re: Re: Leverage the scarcity

    They would need to pay ASCAP/BMI/SESAC if those organizations came calling, but playing recorded music in your venue is permitted by anyone as long as the performance licensing organizations are paid.

    True, but a continuous, large public performance would likely get tagged with prohibitive overhead: especially for a museum:

    From ASCAP:

    Generally, rates are based on the manner in which music is performed (live, recorded or audio only or audio/visual) and the size of the establishment or potential audience for the music. For example, rates for restaurants, nightclubs, bars and similar establishments depend on whether the music is live or recorded, whether it's audio only or audio visual, the number of nights per week music is offered, whether admission is charged and several other factors.


    This pricing structure does not favor inclusive, low cost admissions for, say, a public museum.

     

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  15.  
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    Suzanne Lainson (profile), Aug 19th, 2010 @ 12:13pm

    Re: Re: Re: Re: Leverage the scarcity

    This pricing structure does not favor inclusive, low cost admissions for, say, a public museum.

    I have no idea what they would charge. Presumably these and similar places have already worked something out.

    Experience Music Project
    The Rock and Roll Hall of Fame and Museum
    Southern American Music Museum (SAMM)

     

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  16.  
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    Mike Masnick (profile), Aug 19th, 2010 @ 12:32pm

    Re: Leverage the scarcity

    Seems like this is a perfect example of using scarcity to your advantage.

    Um. No. You are confusing (again) artificial scarcity with real scarcities.

     

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  17.  
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    Jimr (profile), Aug 19th, 2010 @ 12:34pm

    Just distribute while collecting a reasonable fee and hold the money in trust and charge a moderate fee for the management of the trust. The Canadian record industry does this and hold billions in trust because it is to much effort to attempt to track down all the parties that are due any monies.

     

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  18.  
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    Suzanne Lainson (profile), Aug 19th, 2010 @ 12:47pm

    Re: Re: Leverage the scarcity

    Um. No. You are confusing (again) artificial scarcity with real scarcities.

    No, I'm not. If you create a limited edition set of t-shirts, you have chosen to limit the number of available.

    If you sell tickets to an event, you have chosen to limit the availability of tickets, either by setting a very high price, or by choosing a venue that will only hold a certain number of people.

    Right now there aren't multiple copies of these recordings, so the museum could choose not to make them and instead sell the physical necessity of coming to the museum as its product. Sufjan Stevens sold a song to a fan and the only way you can hear that song is to go to the fan's house. The fan intentionally wants to make listening to the song an "event."

    There's a movement called the "Theater of One" where you only allow one person at a time see a show. If you only allow a limited number of people to hear these recordings, it's the same thing.

     

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  19.  
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    Suzanne Lainson (profile), Aug 19th, 2010 @ 12:49pm

    Re: Re: Re: Leverage the scarcity

     

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  20.  
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    Suzanne Lainson (profile), Aug 19th, 2010 @ 12:55pm

    Re: Re: Re: Re: Leverage the scarcity

    And here's this info:

    Theatre for One

     

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  21.  
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    Danny, Aug 19th, 2010 @ 1:04pm

    Re: Re: Leverage the scarcity

    Agreed. The the scarcity here is only happening because people creating the scarcity (artificial). Its not like we're talking about music that is impossible to distribute digitally and last physical copies are about to degrage beyond repair. We're talking about mucis that can be distributed just fine (the technology allows it) but is only being held back by people who would rather let it be lost to the ages than have it be distributed in some way they don't havae 100% control of.

     

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  22.  
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    Mike Masnick (profile), Aug 19th, 2010 @ 1:11pm

    Re: Re: Re: Leverage the scarcity

    No, I'm not. If you create a limited edition set of t-shirts, you have chosen to limit the number of available.

    Suzanne, once again, you are wrong. You seem to define things differently than they are really defined.

    Artificial scarcity is a limit that is created via the law, not through circumstance.

    A limited number of t-shirts or choosing a small venue is a real scarcity.

     

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  23.  
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    Suzanne Lainson (profile), Aug 19th, 2010 @ 1:23pm

    Re: Re: Re: Leverage the scarcity

    Let me suggest this very plausible scenario.

    Let's say the museum doesn't really want to make copies, and it's easier to publicly say that copyright prevents them from doing so than to say, "Our business plan is for you to come here to listen to them."

    And let's say the museum announces, "We want to recreate the experience of listening to jazz on the radio in a 1930s home, so we feel the best way to present this material is for you to come to our museum and listen in as close a manner as we can duplicate to the original experience."

    And the museum could also say, "William Savoy did not make these recordings widely available, so we plan to do the same. If you want to hear them, come to the museum."

    There are many reasons why the museum might want to not release these recordings. If you guys want to call this artificial scarcity, that's fine by me. But the net result is that there are no copies and the museum could use this to its advantage.

     

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  24.  
    identicon
    Danny, Aug 19th, 2010 @ 1:36pm

    Re: Re: Re: Re: Leverage the scarcity

    Let's say the museum doesn't really want to make copies, and it's easier to publicly say that copyright prevents them from doing so than to say...
    From the get go this is artificial scarcity. If the museum were to say they do not want to make copies even though making copies is possible then its artificial. And the business plan of having people to come and listen to them is a business plan that capitalizes on that artificial scarcity.

    And let's say the museum announces, "We want to recreate the experience of listening to jazz on the radio in a 1930s home, so we feel the best way to present this material is for you to come to our museum and listen in as close a manner as we can duplicate to the original experience."
    Yes the museum, replica homes, fake radio stations and all the scenary are actual scarcity because building those sets is something that most people can't do. But the music playing while you tour this museum can be copied very easily. Just like movie theaters. The movie itself isn't the scarce item. The scarce item is the massive viewing rooms, stereo sound, and whatever else that comes with going out to the movies that most people can't do on their own (yes I know home theater systems are getting cheaper but for the most part Average Joe/Jane still can't drop $1000+ to build their own).

    And the museum could also say, "William Savoy did not make these recordings widely available, so we plan to do the same. If you want to hear them, come to the museum."
    Back in Savoy's day its certainly possible that recordings of his mucic were not widely available. (Not sure who Savoy is but if he's being used in this conversation then I take he is at least a musician whose day predates digital media.) But if any of his mucic is still around then unless there some actual technological reason for not digitally distributing his mucis its still artificial scaricty to set it up so the only place to hear it is at that museum.

    And also bear this in mind. If that museum were to follow this plan then they would be cutting the distribution of Savoy's music short (thus limiting the fanbase) for the sake of control over how people listen to it. Not everyone can afford to go to this museum everytime they want to hear Savoy's music.

     

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  25.  
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    Ed C., Aug 19th, 2010 @ 2:02pm

    Re: Re: Re: Leverage the scarcity

    Of course, that's the complete BS of these collection agencies--they'll knock down doors to get what's "owed" to them, but but won't do squat to find the real owners to pay them. And good luck trying to get anything out of them either...

     

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  26.  
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    Karl (profile), Aug 19th, 2010 @ 2:18pm

    Re: Re: Re: Leverage the scarcity

    They couldn't do that, actually. Paying ASCAP/BMI/SEASAC will only grant you a license to use thier music.

    The vast majority of this music wouldn't be covered by these PRO's, for the simple reason that these PRO's didn't exist yet.

    So, they would need to track down and pay statutory rates to every songwriter - and that's the problem.

    Incidentally: I still don't understand how state copyright law could even lock up music in this way. How does this not conflict with Wheaton v. Peters, in which the Supreme Court declared explicitly that there can be no "common law copyright" in the U.S.?

     

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  27.  
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    Ron Rezendes (profile), Aug 19th, 2010 @ 2:46pm

    What am I missing here?

    The scarcity of the music is artificial but beyond the holders' control as far as distribution so wouldn't the next logical step for the museum to take would be to capitalize on the scarcity while it exists?

    Creating a surrounding authentic to the times to listen to it would be one good way as mentioned above, selling the "I listened to the Such-and-such Jazz Collection at the National Jazz Museum!" t-shirts would be another. You could use pictures of the museum setting on the shirt to encourage more visitors by giving them a glimpse of the experience.

    To take this one step further you could set up a donation box at the museum to receive donations for the rights holders if they are ever found.

    Eventually the copyright will end and the museum is holding the only copies so they would be able to also capitalize on initial sales for a brief moment until the recordings hit the interwebs.

    Despite the hassle creating the artificial scarcity in the first place (most of us want these circumstances corrected anyway) it seems the museum could indeed benefit both before and after the copyright expires.

     

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  28.  
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    Karl (profile), Aug 19th, 2010 @ 2:50pm

    Re: Re: Re: Leverage the scarcity

    Actually, "orphan works" legislation is something that does come up in Congress. See e.g. HR 5439, the Orphan Works Act of 2006, or the Shawn Bentley Orphan Works Act of 2008.

    Unfortunately, this legislation is always attacked by pro-copyright industries, who believe that any public use of copyrighted material is "theft," even when the copyright holder can't be tracked down, or is long dead. For an example of such paranoia, see how Nikon called the 2006 bill a "License to Steal."

     

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  29.  
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    Suzanne Lainson (profile), Aug 19th, 2010 @ 2:54pm

    Re: Re: Re: Re: Re: Leverage the scarcity

    Not sure who Savoy is but ..

    Here's more about Savoy from the article. Apparently he had no intention of sharing the collection.

    "After making the recordings, Mr. Savory, who had an eccentric, secretive streak, zealously guarded access to his collection, allowing only a few select tracks by his friend Benny Goodman to be released commercially. When he died in 2004, Eugene Desavouret, a son who lives in Illinois, salvaged the discs, which were moldering in crates; this year he sold the collection to the museum, whose executive director, Loren Schoenberg, transported the boxes to New York City in a rental truck."

     

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  30.  
    identicon
    Anonymous Coward, Aug 19th, 2010 @ 3:12pm

    Re: Re: Re: Re: Leverage the scarcity

    I believe "circumstances" are precisely what is keeping these recordings scarce.

     

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  31.  
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    Suzanne Lainson (profile), Aug 19th, 2010 @ 3:19pm

    Re: Re: Re: Re: Leverage the scarcity

    So, they would need to track down and pay statutory rates to every songwriter - and that's the problem.

    Remember that the PROS collect on behalf of songwriters, so if these songs are in ASCAP/BMI/SESAC registry, they would be covered.

    And if they aren't, well no one else is collecting on behalf of songwriters whose songs are played in venues. There are no compulsory rates for performance royalties, only mechanical royalties.

    No one collects performance royalties from venues on behalf of those who made the recordings in the US so the fact that these are old recordings doesn't factor into what the PROs do.

    So what would likely happen is that ASCAP/BMI/SESAC would hear at least a few songs they represent, they would collect from the museum, and that would be that.

     

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  32.  
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    Suzanne Lainson (profile), Aug 19th, 2010 @ 3:28pm

    Re: Re: Re: Re: Leverage the scarcity

    The vast majority of this music wouldn't be covered by these PRO's, for the simple reason that these PRO's didn't exist yet.

    Turns out ASCAP did exist before these recordings were made. Remember ASCAP is a songwriting association, not a recording association.

    History of ASCAP: Founded February 13, 1914:
    "The Birth of ASCAP (1914)
    On February 13, 1914, at the Hotel Claridge in New York City, a group of prominent, visionary music creators founded The American Society of Composers, Authors and Publishers. For songwriters and composers, this monumental event would forever change music history."

     

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  33.  
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    athe (profile), Aug 19th, 2010 @ 3:45pm

    Re: Re: Re: Re: Re: Leverage the scarcity

    There's a chance that they'd hear zero songs they represent, and still collect from this museum...

     

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  34.  
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    Suzanne Lainson (profile), Aug 19th, 2010 @ 4:03pm

    Re: Re: Re: Re: Re: Re: Leverage the scarcity

    There's a chance that they'd hear zero songs they represent, and still collect from this museum...

    Yes, that is how they tend work. I'm not defending them. Just saying that if you pay the PROs, you should be in the clear in terms of playing recordings at the museum because that's the sort of license they provide.

    In other words, not being able to find the copyright holders for these recordings shouldn't prevent you from being able to play them in public.

     

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  35.  
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    Nina Paley (profile), Aug 19th, 2010 @ 4:49pm

    Re: What am I missing here?

    The article isn't about how the museum can make money. It's about how the whole culture is impoverished by copyright.

     

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  36.  
    identicon
    Anonymous Coward, Aug 19th, 2010 @ 5:03pm

    Re: Re: What am I missing here?

    Who cares about culture when some dead people can make a little money?

     

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  37.  
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    Suzanne Lainson (profile), Aug 19th, 2010 @ 5:17pm

    Re: Re: What am I missing here?

    This is what I saw. The Times article was more about the find than about copyright. So they seem to be satisfied, for the moment, with just making the music available at the museum. And if the museum is able to make money, it might be able to use that to support other activities that it is doing. It didn't say that, but I'm sure there are benefits to making money.

    If you guys can get modifications in copyright laws, great. But in the meantime, the museum can use the discs to generate more traffic at the museum.

    _________

    National Jazz Museum Acquires Savory Collection - NYTimes.com: "Mr. Schoenberg said the museum planned to make as much as possible of the Savory collection publicly available at its Harlem home and eventually online. But the copyright status of the recorded material is complicated, which could inhibit plans to share the music. While the museum has title to Mr. Savory's discs as physical objects, the same cannot be said of the music on the discs. ...

    In the meantime Mr. Pomeroy is plunging ahead. He has digitized just over 100 of the discs so far, and knows that additional challenges - and delights - await him.

    'Every one of these discs is an unexpected discovery,' he said. 'It's an education for me. I can hardly wait to transfer some of this stuff because I am so eager to hear it, to find out what's there and solve all the mysteries that are there.'"

     

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  38.  
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    bushman, Aug 19th, 2010 @ 11:08pm

    Piracy to the rescue!

     

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  39.  
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    DearMrMiller (profile), Aug 20th, 2010 @ 3:48am

    Free Jazz!

     

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  40.  
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    Richard (profile), Aug 20th, 2010 @ 6:13am

    Europe/Australia

    Host the music in servers outside the US where sound copyright lasts only 50 years and you have solved the problem.

     

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  41.  
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    kwhat, Aug 21st, 2010 @ 3:52pm

    The Solution

    The industry doesn't care about it's customers.

    Good thing there's what.cd.

     

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  42.  
    identicon
    TheMAXX, Aug 22nd, 2010 @ 3:12am

    Re: Leverage the scarcity

    Listening to hundreds if not thousands of hours of music in a museum one person at a time (they cannot do public performances) doesn't sound like a money maker nor anything even a die hard fan would do. Get someone in Spain to file share these that way no copyright laws are broken (in Spain they allow non-commercial copying).

     

    reply to this | link to this | view in thread ]


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