We saw last week that copyright law is an attempt to protect the rights of the creator(s) of a song. These rights include being acknowledged as the song’s writer(s) and having control over how the song is used by others. The song writer is said to own the song as a piece of intellectual property.
But what if we don’t know who wrote the song or if the song writer is dead or if the music publishing company has gone out of business or if two different people each claim to have written the song?
Before we can even begin to speak about what rights somebody might have over a particular song, we need to know who owns it.
the original owner
When a song is first composed, the owner of the song is the person or people who wrote the music and the lyrics. These song owners then have automatic rights over their creation for a period of time established by law.
If the song is later written down and published or recorded in any way, then those publishers have ownership of the publishing and recording rights. Publishing and record companies are free to sell their songs to other people, thus getting further and further away from the original song writer.
For example, Michael Jackson used to own the publishing rights to pretty much every Beatles’ song. To beat bankruptcy, he sold his share of the rights to Sony in 2006.
Traditional songs that have been handed down from generation to generation seem to have come from nowhere, but somebody wrote them at some time. Unfortunately, we often don’t know who that individual is since such songs mutate and evolve over time. That is why there are so many songs credited to ‘anon’!
Many world cultures have never written their songs down and don’t even have the concept of ‘authorship’. In these days of global communication, it is very easy for Western musicians to appropriate such songs and claim rights over them.
The Smithsonian recently held an online conference on the subject of Who owns music? looking at the ethical and even philosophical questions which Smithsonian Folkways Recordings must wrestle with as it gathers the music of cultures around the world.
Click on “Access Archive” to hear a recording of Folkways’ D. A. Sonneborn telling stories of the music makers he’s met in a session that considers the idea of ownership in its largest sense.
selling songs to other people
For a variety of reasons, song writers sometimes decide to sell their songs to somebody else. Maybe they need to make money, or they’ve been tricked somehow, or they think that by selling it the song will get wider recognition.
Many of us are familiar with the pop song “The lion sleeps tonight” which was a hit for Tight Fit in 1982. This song is an adaptation of an earlier version called “Wimoweh” recorded by The Weavers in the 1950s.
The original song, “Mbube” was written by Solomon Linda in 1939. It was a huge success in his native South Africa. Linda sold his rights to the song for 10 shillings (less than $US 2) to the record company shortly after the recording was made.
The original recording was discovered by American musicologist Alan Lomax in the 1950s who passed it on to his friend Pete Seeger who was in The Weavers. Seeger assumed the song was in the public domain so The Weavers credited it to Paul Campbell, a fictitious entity used to copyright material.
Years later the song was used by the Disney Corporation in their movie The Lion King, earning an estimated US $15 million in that movie alone. Solomon Linda didn’t see a penny of this and died in poverty in 1962.
In February 2006, Linda's heirs reached a legal settlement with Abilene Music, who held the worldwide rights and had licensed the song to Disney.
you are my sunshine
Another example is You are my sunshine. First recorded in 1939, the song is copyright 1940, words and music by Jimmie Davis (who later went on to become Louisiana’s state governor) and Charles Mitchell.
The song was first recorded by the Pine Ridge Boys on August 22, 1939; the Rice Brothers Gang recorded it on September 13, 1939; Jimmie Davis bought the ‘rights’ to the song from Paul Rice for $35 in late 1939. Davies never claimed to have written the song, but Paul Rice claimed to have composed it in 1937.
But the song wasn’t Rice’s to sell. According to an article by Theodore Pappas in 1990, There are still people alive, who remember hearing the song long before 1937 - in particular, a mid 1930s performance of the song by Riley Puckett himself - and what these people remember is the name of the musician with whom both Riley Puckett and Paul Rice played in the early 1930s: Oliver Hood of LaGrange, Georgia.
There are many other examples of disputed ownership, some of which have never been resolved. Here are two examples.
In about 1947 an American, Julius Grossman, added a third part to Miron’s song which ended up being published in 1949 and credited entirely to Grossman. Miron took Grossman to court in 1954 and won.
The court case makes fascinating reading and gives an insight into the complexities of copyright law. One interesting claim was that neither party wrote the song at all, but that it was in the public domain long before 1941 so was freely up for grabs!
Authorship of the song is often attributed to Fadhili William, but that is somewhat disputed. It appears that the song was written in the 1940s by a Tanzanian, but at least two song writers claim it. There are also claims from Kenya and other East African countries. It may be that William wrote one of the verses, but it’s almost certain that he didn’t write the whole song.
There is no clear owner of the song, although Fadhili William is now generally recognized as the composer for royalty purposes.
Whether consciously or not, many song writers end up ‘borrowing’ tunes or lyrics from other songs. Some even go as far as claiming a song as their own composition even though they know it was written by somebody else.
A famous example of ‘borrowing’ bits of tune was George Harrison’s court case claiming that he had plagiarised the melody for “My sweet Lord” from the 1963 hit single “He’s so fine.”
is it really in the public domain?
Many songs appear to be in the public domain (i.e. not covered by intellectual property rights) because they are very old or nobody knows who owns them. But the way that copyright law works, even if the original song writer is long dead, somebody may still ‘own’ the song.
A couple of years back I released a live CD with my community choir WorldSong. Before we could produce the CD, we had to check whether we had permission to record each of the songs.
One of the songs we wanted to put on the CD was How can I keep from singing? This song is a Christian hymn written by American Baptist minister Robert Lowry (1826 – 1899). Since he died so long ago, I naturally assumed that the song was now in the public domain.
When I received the paperwork back from MCPS (the Mechanical Copyright Protection Society) I was informed that the song’s UK copyright is held by Harmony Music Ltd. and the song is credited to Sankey and Plenn.
The song was published by Lowry in 1869. He claimed to have written the music, but he didn’t say where the lyrics came from. In 1878 the American gospel singer and composer Ira D. Sankey published his own setting of the words, writing that the words were anonymous.
Doris Plenn learned the original hymn from her grandmother, who reportedly believed that it dated from the early days of the Quaker movement. Plenn contributed an additional verse around 1950, which was taken up by Pete Seeger and other folk revivalists who modified much of the overtly Christian wording.
So it seems that the song is still in copyright because of the extra lyrics added by Plenn in the 1950s. I still haven’t found out how come the copyright is held by Harmony Music!
Just because a song is old, doesn’t mean that it’s automatically in the public domain.
Next week I’ll be looking at how you go about getting permission to use a song in order to perform it, record it, arrange it, etc. Also how to claim rights over your own song writing. This will refer to the situation in the UK only I’m afraid.
This is the fifth in a series of seven posts about songs and copyright:
- Even if it’s a folk song, somebody wrote it
- Basic principles of copyright
- Different kinds of rights
- How the law works
- Who owns the song?
- How to get permission to use a song