Re: copyright of "collected" folk songs

Michael:

The "collector's copyright" controversy was never resolved. It lies latent in the folk music landscape like an unexploded land mine.

The closest the courts have ever come to upholding a collector's copyright is in the case of Wihtol v. Wells, 231 F.2d 550 (7th Cir. 1956). In this case the plaintiff had taken an old Latvian folk song, modified it, and published it as a choral anthem. In some of the editions of the anthem he stated that "the melodic element of this etude is from a Russian folk song." In that single word "from", I suppose, lies the difference between an adaptation and a straght reprint. However, while Judge Duffy in some of his opinion recognized the anthem as a derivative work, elsewhere he seemed to uphold the notion of collector's copyright:

     "To make a song available, someone must bring the
     notes and words together...The only evidence of
     any antecedent of any part of the copyrighted work
     is plaintiff's own statement, that during his
     boyhood days in Riga he heard a tune similar to
     the melody score of the copyrighted work, played
     on a hurdy-gurdy.  But it was original work on
     plaintiff's part when, some thirty years later,
     he devised a calculated melody score thus putting
     it in shape for all to read.  It was quite natural
     that plaintiff employed similar successions of sound 
     in his writing of the melodic element of his "My God
     and I."  In his application for copyright plaintiff
     correctly filed "Only for new music now first 
     published"...We hold plaintiff's writing of the
     exact and complete melodic element of "My God
     and I" was an original work subject to copyright.

So the judge seems to extend the plaintiff's copyright to the entire ("exact and complete") melody even though the plaintiff himself had only registered copyright in "new music now first published." I think the judge really botched it. The problem was that no alternative version of the original folksong was known; at least, none appears in the report of the case.

In 1957, the International Folk Music Council issued a statement holding that folk song collection was inherently a creative act, and that therefore collectors should be awarded copyright in the melodies they collected. This statement was issued after Wihtol v. Wells, so even if it reflected the ideas that Judge Duffy was trying to express, it was not available for him to cite. So Wihtol v. Wells remains on the borderline between adapter's copyright and collector's copyright.

Most other cases involving musical copyright require a musical derivative work (such as the adaptation of a folksong) to differ more than trivially from the preexisting work. In Tempo Music v. Famous Music, 1994 Copyright Law Decisions #27,200 (S.D.N.Y., 1993) Judge Sand noted that "there is a one note variation between the original and revised melody...the Court finds that the originality of the revised melody is too insubstantial to warrant copyright protection...Therefore, we focus on harmony in this section," and went on to rule that harmony could be protected by copyright (though it might not).

Where does this leave collections of folk songs? The safest thing to do is to take folk songs from out-of-copyright sources, such as old back issues of the Journal of American Folklore or the Journal of the Folk-Song Society. But I wish someone with money would take the matter to court. To my mind a field-collected folk song is not an "original work" of the collector's "authorhsip", and if the collector represents the song as collected without any mention of adaptations, then he should be held to that representation. If he does claim to have "adapted and arranged" the work, then the copyright should extend only to the adaptations. But taking the matter to court could be chancy. I am not a lawyer (and nothing in this note constitutes legal advice, and even if I were, and it were, free legal advice is worth no more than what you pay for it, etc. etc.) but as I understand how infringement cases work, the plaintiff gets most of the breaks, just as in Wihtol v. Wells. Unless the defendant can prove a preexisting version, the plaintiff's copyright certificate is prima facie evidence of the validity of copyright. Couuld the defendant appeal to plaintiff's own representations of the work as a folk song? It didn't work in Wihtol v. Wells.

Tim Phillips
<phillips[_at_]mail.nhn.ou.edu> Received on Tue Apr 28 1998 - 21:34:08 GMT