If Robert Johnson Died In 1938… Why Is His Music Still Covered By Copyright?
from the life-+-70 dept
Michael Scott points us to a fascinating post by Sage Ross, talking about a rather ridiculous copyright situation faced by his father, a professional musician. There are two worthwhile points to discuss in the post. The first concerns how many jazz and blues musicians view copyright law:
My dad is a professional musician; he plays blues and jazz and original piano music, and has made five records. For professional musicians outside of pop music (and often in in pop as well), copyright law is already simply a burden to the point that it is almost universal ignored. Gigging blues and jazz musicians have long used “fake books”, unauthorized charts of the melodies, lyrics and chord structure of jazz standards. No one is worried about other musicians infringing on their copyrights, because jazz and blues (among other genres) are rooted in a culture of borrowing and adaptation. It’s inimical to creativity to draw sharp lines between what can and can’t be borrowed or adapted, and indeed in academic jazz programs one learns to improvise by practicing the great “licks” on classic recordings.
That’s a great description of how music works — and how copyright often gets in the way of basic creativity in music and goes against the traditional means of creating new and wonderful music. The second point is explaining how Ross has realized that a Robert Johnson song his dad covered might still be covered by copyright, despite the fact that Johnson died in 1938, and the song itself was recorded in 1937. The situation helps demonstrate how screwed up our copyright laws are (yet again):
One classic he put on a 2004 album is “Love in Vain Blues”, a Robert Johnson tune that was first recorded in 1937. Johnson died in 1938, and the original recording was published on vinyl in 1938 or 1939 (without a copyright notice) and not renewed after the then-standard 28-year copyright term had ended.
But as the result of a series of utterly insane laws and court decisions, it turns out that the song may be under copyright through 2047. Today, issuing as sound recording is considered publication. But according to the 2000 decision in ABKCO v. LaVere, sound recordings published before 1978 don’t count as publication. So despite the publication, re-publication, and widespread adapation of Johnson’s “Love in Vain”, it was never “published” before 1978 because there was no sheet music. And because it was created earlier but “published” first between 1978 and 1989, the crazy rules go into effect.
Yup, but there’s no problem at all with copyright, right?
Filed Under: copyright, music, robert johnson
Comments on “If Robert Johnson Died In 1938… Why Is His Music Still Covered By Copyright?”
Yeah, but...
Robert Johnson isn’t going to create any new works if we don’t look out for his IP rights, now is he?
Re: Yeah, but...
Of course he’s not going to. But think of his children! They have to be able to make a living!
Re: Re: Yeah, but...
“But think of his children! They have to be able to make a living!”
ZOMG!!! Johnson died in 1938. If he had a child that year, that child would now be 70 and retired. The child would now be retired and getting a pension, after making a living on their own for the last 70 years plus getting royalties from their father’s work.
What are you talking about?
Re: Re: Re: Yeah, but...
Understand sarcasm much?
Re: Re: Re:2 Yeah, but...
No.
Re: Re: Re:2 Yeah, but...
Yes. Perhaps you should learn to use it.
Re: Re: Yeah, but...
Think of his children???, you mean to tell me they can;t make there own living??? after all they are in there 30’s or 40’s by now…
“Yup, but there’s no problem at all with copyright, right? “
Okay, let’s take an exceptional case, and damn the entire copyright system as a result of it.
Good plan. Next time you make a typo Mike, shut down your blog. It’s the only thing to do.
Re: Re:
“But according to the 2000 decision in ABKCO v. LaVere, sound recordings published before 1978 don’t count as publication.”
This isn’t limited to this single case, and isn’t some small issue. This would apply to one hell of a lot of music.
Re: Re: Re:
We can’t let facts get in the way of emotional arguments
Re: Re: Re:
Yeah, but gotta let the stupid IP fuckers have their trolltastic say, too, right?
Look, asshole died 70 years ago. His kids, if they’re still alive, aren’t going to give two shits about this. Grandkids? Really? Screw them. Get a damn job, ya hippies.
Re: Anonymous Coward's post
Not once in the entire blog entry does the author call for tossing out the entire copyright system. It merely illustrates that the system is not free of problems, and often times more cumbersome and restraining than helpful. If anything, the unspoken message is to suggest that perhaps we should find a better execution for the copyright system.
Ironic, isn’t it? You’re argument is one against making mountains out of molehills, but you’re knee jerk reaction to the post is precisely that.
Re: Re: Anonymous Coward's post
psst, don’t feed the troll
Re: Re:
AN exceptional case?
Are ye daft man? it’s all of Jazz and Blues both.
As well as music in general.
Re: Law as it was in 1939
Actually, this post seems to take copyright law as it existed in 1939 and use it to condemn the copyright law as it exists in 2009. It seems particularly bizarre to second-guess people from 1939 as not properly anticipate how Jazz culture would evolve in the future. If Jazz has a culture of reuse, why would we condemn the laws as being flawed rather than condemning the artists as not taking the time to grant rights to others consistent with their wishes. Copyright law does not block release of rights; Creative Commons relies on copyright law to work.
Re: Re: Law as it was in 1939
As it was in 1939 there was no copyright on sound recordings in the US.
It was only later when someone decided that there “should have been” that a problem arose.
In the UK – and I guess in most of Europe sound recordings have a copyright life of 50 years (although once more the term extension lobby are trying to change that -although the currently proposed extension to 70 years won’t affect this particular case.
In the US the situation was messed up by this judicial decision:
http://www.allbusiness.com/retail-trade/miscellaneous-retail-retail-stores-not/4376256-1.html
Re: Re: Law as it was in 1939
The law that screws this up is a 1978 law with later modifications.
The law of the time basically said that if you assert a copyright, the work is copyrighted for 28 years. Outside that, no copyright. Most blues and jazz of the 40’s was created by people for whom education was not an option, and knowledge of the legal system was usually at the business end of a policeman’s baton.
From its inception, copyright was designed to protect artists’ revenue. It should have an expiration for the simple purpose of encouraging further work. It should not be renewable and should not be transferable to others, including heirs.
Re: Re: Re: Law as it was in 1939
That might have been its intention, but from the outset copyright has been designed to protect the publisher’s revenue.
Re: Re: Re:2 Law as it was in 1939
” From its inception, copyright was designed to protect artists’ revenue.
That might have been its intention, but from the outset copyright has been designed to protect the publisher’s revenue.”
No – it was always designed to help the publisher – it was invented by the London Company of Stationers – a Publishers’ organisation. The stuff about artists (authors) was never more than a cover story from the very beginning.
see
http://questioncopyright.org/promise
for the history.
Re: Re: Re:3 Law as it was in 1939
Thanks for the link!
Re: Re: Law as it was in 1939
The real problem is how they grandfathered the older copyrights makes impossible to tell if a song is still under copyright without going to court.
If Songs written by slaves of the 1850’s were found they could be copyrighted now for 120yrs since they its unlikely they were ever published and they families would have no rights to them since the slaves owners family would have those rights under the laws then.
Re: ok, ok...
Ok, this is not normally the case with music that comes our recently. I think the point Mike is trying to make is that there should be more simplistic rules like X years after it is published (no matter when) that is how long your copyright is good for. You are going just as much over the top as he is, so maybe you can relate better than you think.
Re: Re:
You obviously don’t read this blog very much. He’s making the point that this is just another thing in a long line of what’s wrong with US copyright.
Re: Re:
Too bad that isn’t the only ‘exceptional case’, it’s just one he’s pointing out. Stop being a troll.
Hmm...
I can’t imagine what a total mindf*ck copyright law will be if we ever manage time travel.
In fact, I have no clue how that’d work, but I’m sure the RIAA (or its demon offspring, if this is the future we’re talking about) would find a way to screw everyone over with it.
After all, how “dead” is someone if you can go back in time and visit them? Well, still pretty dead from a “here and now” perspective but I’m sure you can see how weird that could get with a few BS arguments from lobbyists and such.
Kind of a dumb comment, admittedly, but a fun idea to play with when you think about it for a little while.
Re: Hmm...
Big Media is not at all in happy when the topic of space and time shifting is being discussed.
Re: Re: Hmm...
Neither is the Time Police.
Wait…does that mean…
Oh, crap! Big Media IS the Time Police!
Re: Re: hahaha
Clevername with a clevercomment.
Glass raised to you sir!
Re: Hmm...
we’ll never learn to time travel
else someone would have done it by now sometime in the future and, given an infinite future, someone would have come back by now no matter what restrictions or “prime directives” there were
if they were ever going to do it, then they did it, which they haven’t, so we won’t
or maybe I need some sleep….
So if I copyright middle C – no one else can use it? 🙂
Re: Re:
I recall a Simpsons episode where a lawyer tells homer that a certain note is owned by Disney, and makes him say “d’oh” again.
Re: Re: Re:
Hey, I recorded “d’oh!” about 30 years ago when I was 10 and got my first tape recorder. Shouldn’t Matt Groenig pay me 10 million dollars?
Time Travel
Physical bodies are not sent through time, but consciousness is. Deja Vu is the only effect is causes when a consciousness temporarily piggybacks on another. Obviously prior to its implementation it has little effect other than for historical research, but post time travel it is used extensively in criminal prosecution. It was amazingly adaptable as all the required laws and regulations immediately passed as it allowed us to foresee the effects.
Electronic Dance Music is much the same. Although part of it may have to do with the fact that most artists/djs already posses all the equipment necessary to produce albums without the need for an outside record-label’s studio contracts.
Borrowing, copying, remixing, publicly playing, getting free promo copies from the artists and labels is just part of the nature of electronic dance music (aka “techno” aka “electronica” aka whatever the fuck the pop culture decides to mislabel it next). I’ve never heard of a case of someone being sued for sharing, let’s say Deadmau5 tracks, for example.
you people are getting what you deserve
I’ve read dozens of articles like this over the years and I think you Americans are getting what you deserve. The American people have used the last few decades to get themselves a government that revolves around lobbyists and special interest groups and a legal system that accepts and rewards insane lawsuits (spilling hot coffee, drying dogs in a microwave)
Both lead to situations like this and lawsuits where the copyright mafia can get millions in damages awarded to them.
Now as far as America is concerned, it’s your problem, you clean it up. Unfortunately the rest of the world tends to ape America so part of this rot is spreading, that’s a shame.
Re: you people are getting what you deserve
You sound as if you know a lot about politics in the us of a, but you assume too much and are possibly quite naive – or just a troll. Either way … I have never seen an item on the ballot which asks whether I want to strengthen copyright, patent or trademark laws. Nor do I recall any candidate proclaiming such in their campaign rhetoric. It is typical in politics, no matter what country, to promise everything and deliver nothing. Sometimes it is even worse, you get the opposite of what you wanted.
Re: you people are getting what you deserve
I love the fact that you just mingle in the few intellectual people that remain in America with that morons that run the government. Stereotypes never result in anything good, and the fact that you just used one makes me question your intellect in the first place.
Besides, you completely missed the point of our problem. Lawsuits and what not are just the tip of the wave, the problem we have is that we’re run by one screwed up capitalist agenda. It’s only going to get worse with Obama’s stupidity, but sadly I am powerless to do anything about it. Guess I’m just getting what I deserve right?
Re: you people are getting what you deserve
Hear ya hear ya!
It's a Conspiracy
I bet Disney specifically timed the registered creation date of Mickey Mouse just to ruin Jazz. He was such a racist. Unfortunately, I’m not being sarcastic this time. Disney was a racist, and used his business and politics against any media or culture he disliked. I feel his racist hands reaching out from the grave at me right now! OK that last part was a little sarcastic.
Re: It's a Conspiracy
@Fred McTaker: “Disney was a racist…”
Indeed. Who can forget the cartoon classic from the forties, ‘Steamboat Nazi’? And the scene where SS Ubergruppenfuhrer Donald Duck marches Goofy off to Auschwitz, what a riot!
Re: Re: It's a Conspiracy
Damn! TD stripped off my godwin tags!
Is the problem here not a bad court decision?
Crossroads
It’s always been said he did a deal with the devil at the crossroads. Possibly that’s how the RIAA got formed.
So what happens if I take the 1930’s recording – which is PD here in the UK and now create sheet music from it.
Here in the UK it is my copyright or PD so I can certainly place it in the PD if I wish.
What is the status of that music in the US?
Commenting on the Naxos case a Capitol spokesman said :
“Recording companies need this level of protection to sustain current recording programs, particularly in the classics genre”
Of course this could only possibly apply to recording companies with a long history – implying that this is all about maintaining the rights of existing companies.
On further thoughts – are really saying that they will issue new (potentially lossmaking) classical recordings financed by these royalties?
In fact are the recordings in question even available in the US now?
Personally I believe that the real motivation is to create a situation where there are NO freely available sound recordings and to use that fact as a lever to control the availability of technology.
It clearly states in the liner notes of the classic Columbia collection released in the 60’s that his recordings were in the public domain (I owned a copy.) How does something in the PD slip back into copyright?
Re: Re:
Theft.
Re: Re: Re:
No, it’s “Property is theft!”
“It clearly states in the liner notes of the classic Columbia collection released in the 60’s that his recordings were in the public domain (I owned a copy.) How does something in the PD slip back into copyright?”
Maybe it doesn’t – that sleeve note may constitute a release to the public domain….
Small print
I think if you examine the small print on any of his recordings it says “The copyright in this sound recording is held by Beelzebub all rights reserved in hell for eternity”.
Insane copyrights
Look, you can make any argument you want by pulling in something from the fringe. The case you site is an exception, not the norm. If you’re going to make a point, then stick with the norm. I think you have a good point to make, but by using such a wild fringe example, you’ve ruined your own argument.
Re: Insane copyrights
Fringe?
I would think that it is more telling of the mindset at play here.
cease and desist
I think I will continue what I’m doing and wait for a cease and desist…which surprisingly never arrives.
It’s amazing to me how the brass don’t pay that much attention to the little guy…we can get away with murder if we just put our minds to it 🙂
Strange situation...
… a man win more money when he play in the sky!!
Oh dont worry….
Obama will fix it!!!
Re: Robert Jonston Copyright
I remember a documentary about a solicitor? who worked for free on behalf of his “destitute relatives” to get some payment for his family as a lot of his works earned no money. He was after all, a black musician in the 20’s /30s and as such wasn’t considered for payment. This solicitor went to blues legends like Eric Clapton and the Stones asking for retrospective ex gracia payments in recognition of the fact that they had used his music. I know that Clapton said “Sure, how much” and took out his cheque book straight away. I think he won a case to have Robert Johnson’s songs “re” copyrighted.
Re: Re: Robert Jonston Copyright
I can’t see any reason for the underlying melody/lyrics to be copyright even if the sound recordings are. The point is that he died more than 70 years ago – so even if it was “re-copyrighted” in (say) 1975 – it would still have expired at the end of 2008 70 years after his death.
AS far as I know the only “re-copyrightings” that have happened in the US have been where the war prevented renewal under the old 28+28 regime.
Marty DiBergi: Now, during the Flower People period, who was your drummer?
David St. Hubbins: Stumpy’s replacement, Peter James Bond. He also died in mysterious circumstances. We were playing a, uh…
Nigel Tufnel: …Festival.
David St. Hubbins: Jazz blues festival. Where was that?
Nigel Tufnel: Blues jazz, really.
Derek Smalls: Blues jazz festival. Misnamed.
Nigel Tufnel: It was in the Isle of, uh…
David St. Hubbins: Isle of Lucy. The Isle of Lucy jazz and blues festival.
Nigel Tufnel: And, uh, it was tragic, really. He exploded on stage.
Derek Smalls: Just like that.
David St. Hubbins: He just went up.
Nigel Tufnel: He just was like a flash of green light… And that was it. Nothing was left.
Question
I am not up to date on all the intricacies of copyright law, but does this mean that a song written say in 1938 and was never published was then subsequently put to recording by a modern artist, would that artist then own the copyright to the song?
Vinyl 1938?
Obviously not published on vinyl in 1938, but heck what are facts to these revisionists? It would have been a shellac 78 RPM transcription.
Copyrights do far, far more good than bad
The tradition of blues and jazz is different than, for instance, pop music, and every musician knows the reasons for
that – it has to do with the musical form and its uses.
Just because the copyright law is sometimes abused or sometimes seems to “stifle free speech” doesn’t mean it should
be abolished. There are a lot of other laws for which that is true as well. And most of those laws are necessary and do far more good than harm – just like the copyright laws.
The tech industry only points out the downside of the law and the misuses. That is the very clear minority. Copyright laws enable many artist to make a living, myself included. We don’t want to all be hawkers of merchandise. And I’m sorry, but when I spend my entire life developing my talent and honing my craft and work long, hard hours (more perspiration than inspiration, despite what some may think), what I create should not be “free” for anyone to use as they wish. Yes, it IS my work. And I’ll decide how it’s used. Just as an architect or tech designer or anyone else has the right to. And that’s the way it should be until we live in a society where everyone’s living expenses are taken care of and everything is free. We don’t need to screw artists to get to that utopian society. And that’s just what getting rid of copyrights now would do.
Re: Copyrights do far, far more good than bad
The obvious point voxmanz is that the length of copyright is completely unreasonable. Do you really think that your children should continue to profit for many years after your death for work that they never did? If so, you have a serious misunderstanding of the history and real purpose of copyright.
Re: Re: Copyrights do far, far more good than bad
I agree, and I think patents last too long. I think some intellectual property can be good but our current system is absolutely ridiculous.
Re: Copyrights do far, far more good than bad
Just because the copyright law is sometimes abused or sometimes seems to “stifle free speech” doesn’t mean it should
be abolished.
Please look up the First Amendment.
There are a lot of other laws for which that is true as well. And most of those laws are necessary and do far more good than harm – just like the copyright laws.
Please let me know which laws stifle free speech. There are a very small number — not “a lot” and they are *extremely* limited, because of the very issues we discuss here.
The tech industry only points out the downside of the law and the misuses. That is the very clear minority.
If that were true, I’d agree with you. Unfortunately, the actual evidence suggests a massive problem. Not a “minority.”
Copyright laws enable many artist to make a living, myself included.
No. They do not enable it. There are lots of ways to make a living. You chose copyright. Just as those who made buggy whips used buggy whips. And those who had sugar monopolies used sugar monopolies. That doesn’t make it right, nor something that should last.
And I’m sorry, but when I spend my entire life developing my talent and honing my craft and work long, hard hours (more perspiration than inspiration, despite what some may think), what I create should not be “free” for anyone to use as they wish. Yes, it IS my work. And I’ll decide how it’s used. Just as an architect or tech designer or anyone else has the right to.
Um. And once that architect or tech designer sells his product, he no longer has that right. So why do you presume to keep it? I agree that until you’ve sold your product you have total control over it. But after that? Why do you insist on taking away the rights of those who buy?
Re: Re: Copyrights do far, far more good than bad
“Um. And once that architect or tech designer sells his product, he no longer has that right. So why do you presume to keep it? I agree that until you’ve sold your product you have total control over it. But after that? Why do you insist on taking away the rights of those who buy?”
Mike, this is where you run into a logical wall. If a bus company is selling seats on their bus, do they not get to charge each customer that rides the bus, even through the seat has been used before? They don’t charge the first customer the cost of the bus and let everyone else ride for free.
Architects and such work for hire, at a set price. They only sell their work once. One person (group, company, developer) pays all the freight.
In music, we sell it in pieces, in duplicates. Each duplicate is a lower cost version of the original, not the original. Nobody would pay for music outright. We each pay a little bit to get to enjoy the music, that is all.
When you buy music, you don’t buy it all – you buy a small part. In the same manner that when you ride the bus you don’t buy the seat (even though you paid for it) you are in fact renting a seat for the contractually defined amount of time. When you buy music, you are buying defined rights of use and access to the music, not the music itself.
Honestly Mike, when I see you post up stuff like this, I understand why your blog is so all over the road. You don’t seem to understand or accept the basics.
Re: Re: Re: Copyrights do far, far more good than bad
Your bus company sells seats? Wow! What a concept. Mine only sells transportation. The seats are there for my convenience, but they will still sell me the transportation if all the seats are full.
Which part of your music do I buy? The hindquarters? The neck? How much is your music diminished when I get my portion? You don’t sell pieces of a musical creation, no matter how much you wish it to be so. Once music is in digital format, it costs essentially nothing to copy. If I want to make a digital copy and share it with someone who I believe will enjoy it, I can do so. It doesn’t diminish what you have. It doesn’t affect the original at all. The only thing affected is your ability to profit from the original piece; and it may well influence the recipient to go out and purchase their own copy, thereby increasing your cut.
Honestly, when I see a “creative” artist whine like this, I perceive someone whose best work is behind him. You don’t seem to understand or accept the basics. As I’ve read somewhere recently: Connect with fans, give them a reason to buy. Sell them scarce goods and use the infinitely reproducible music as advertising.
Re: Re: Re: Copyrights do far, far more good than bad
“Architects and such work for hire, at a set price. They only sell their work once. One person (group, company, developer) pays all the freight.
In music, we sell it in pieces, in duplicates. Each duplicate is a lower cost version of the original, not the original. Nobody would pay for music outright. We each pay a little bit to get to enjoy the music, that is all.”
Of course musicians often sell their work only once – to a publisher or record company – and many work for hire too – that is not the point.
The point is this:
Most things that I buy (as opposed to renting) are mine. I can do what I like with them.
Before about 1960 this was also true in practice for records – because the technology required to copy them was too expensive for private individuals.
Copyright then amounted to a cartel agreement between record companies to “keep off each others patch”. Although records would have been cheaper even then without copyright, copyright did give the musician “something to sell” to the record company.
The problem now that copying has become cheap is that a law which was originally designed for high profile copiers (those in possession of a record pressing plant and a publicity machine to market its products) now has to be applied to everyone if the business model is to survive.
Unfortunately to enforce the law uniformly requires some combination of a police state (RIAA investigations- into everyone not just a few unlucky targets) and crippled technology (DRM). Crippling the technology will also kill many other businesses – some quite unrelated- and of course a police state is expensive to run.
So the problem is that society cannot really afford to enforce copyright in this new situation. Copyright has become like the Corn Laws in 19th century England – apparently supporting a worthy cause (the poor agricultural labourer/musician) whilst actually supporting a wealthy parasite (the landed gentry/record industry) and inhibiting economic growth for everyone else.
The alternative of leaving the law on the books but not really enforcing it just means that the honest pay for the dishonest.
So we have to find new business models in order that artists and the useful parts of the record industry (the technical specialists plus those who discover and develop new talent) can continue to make a good enough living to devote their lives to their musical skills.
Contrary to what most of the copyright advocates seem to think, this site is really trying to find ways to allow artists and their necessary supporters to continue to make a living in the (we think inevitable) absence of copyright as an effective mechanism.
Even without copyright you can still divide up the FUNDING of an album into lots of little bits so that ordinary people can afford it – you don’t have to divide the music up so that everyone just gets the right to listen.
Change the question from “how much will you pay to have a copy of the new album by X?” to “how much will you pay upfront for X to produce a new album?” My guess is that for most fans the answer to the second question is probably bigger than to the first (more like an $80 concert ticket price than a $10 CD price).
It should also be possible to fund new talent this way (that’s where (some of)the skills of the record industry become useful) Imagine a site where subscribers could submit a list of artists/tracks/musical genres that they like and fund the site operators to find and develop new talent that (in their skilled opinion) will appeal.
(btw your bus analogy is a red herring – the musical equivalent of the bus is the concert – and of course you don’t own the seat afterwards – no one has any problem with that)
Re: Re: Re: Copyrights do far, far more good than bad
If a bus company is selling seats on their bus, do they not get to charge each customer that rides the bus, even through the seat has been used before? They don’t charge the first customer the cost of the bus and let everyone else ride for free.
As pointed out above, if you are the “bus company” then those “seats” are actually you doing a concert, not recorded music You can have as many concerts as you want until your “bus” breaks. Nice try though.
Patent
The music industry should be forced to work by patent (which is imperfect sure). They would have a few years to recoup their costs and thereafter the music can be set free for the world to cover and share (sales of said record would still go to mega firm with a few pennies to the artist – of course).
Why do we have copyright?
I have never really understood the system to begin with. Why is it that some work that some people do worth money any time someone uses it but no other works?
I am an Eng. when I work on a project I put my personal creativity and problem solving into that project, but when the end users come and use that product I don’t get paid for it. I just get paid for the hours I work. I am confused, why is what a musician does any better or worth more than the work I do?
Yeah, but...
Dude. His children are probably elderly or dead, not 30 years old. Can you do math?
Robert Johnson
Did Eric Clapton or bands like Led Zepplin have to pay the Johnson family to use and play his songs?
Yeah, but...
Bro, why did this stupid fucking asshole respond to a comment almost 11 years late? I mean, granted, I’m replying to this comment a year and a half later, but at least I’m not this fucking retarded.