Re: jazz

On Wed, 17 May 2000, G. W. Sandy Schaefer <sschaefer[_at_]csc1.csc.edu> wrote:
>
> (3) Being that improvisations are collections and rearrangements
> of musical phrases previously played by others, and are part of
> the body of material known as the "jazz language," does this mean
> that improvised solos are Public Domain in the truest sense of the
> phrase, that is, derivative works based on Public Domain?

A discussion of this question appears in Jennifer L. Hall, "Blues and the Public Domain -- No More Dues to Pay ?", Journal of the Copyright Society of the USA, Volume 42, pages 215-226 (1995). In this article, Professor Peter Jaszi is quoted as follows:

    Whenever you have a traditional form, whether     is's blues or basketweaving, you're working     with a limited vocabulary... What we reward in     the copyright law -- originality -- isn't always     a good thing.

    If I were in an advocacy position, and someone     said 'all your client has is a lot of traditional     component parts', I would argue that there     is a copyrightable compilation interest.

    Then we're not talking about an arrangement, but     a compilation -- a blues of standard elements, recombinded      in a new order and sequence. (p. 223.)0

I think that this applies _mutatis_mutandis_ to jazz as well as to blues. I also think that this doesn't tell the whole story. But note the Prof. Jaszi's hypothetical context -- he's imagining what to answer someone who alleges that there is nothing original in a blues piece. His answer is that EVEN IF every motive is un-original, still there can be a compilation interest in the selection and arrangement of the motives. So a work which contains not only conventions and cliches re-arranged, but original motives and original adaptations of older motives would have more originality still.

So the answer to Sandy Shaefer's question (3) would be: Yes, I strongly suspect that improvised jazz solos are probably in many cases derivations based on public domain material which, if fixed, would be copyrightable. Obviously one can't decide for any particular piece of music without hearing it. And obviously this post contains only private opinion; nothing in it constitutes legal advice.

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Sat May 27 2000 - 19:30:27 GMT