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.

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Comments on “Treasure Trove Of Jazz To Be Blocked, Perhaps Forever, Thanks To Copyright”

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42 Comments
Anonymous Coward says:

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.

Jim Harper (profile) says:

Re: 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.

Garrett Shelton says:

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.

Anonymous Coward says:

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!

Suzanne Lainson (profile) says:

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.

Suzanne Lainson (profile) says:

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.

Free Capitalist (profile) says:

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.

Suzanne Lainson (profile) says:

Re: Re: Re:2 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)

Karl (profile) says:

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.?

Suzanne Lainson (profile) says:

Re: Re: Re:2 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.

Suzanne Lainson (profile) says:

Re: Re: Re:4 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.

Suzanne Lainson (profile) says:

Re: Re: Re:2 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.”

cc (profile) says:

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.

Suzanne Lainson (profile) says:

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.

Karl (profile) says:

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.”

Ron Rezendes (profile) says:

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!”

TheMAXX says:

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).

Ron Rezendes (profile) says:

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.

Suzanne Lainson (profile) says:

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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