Re: Copyright of 'collected' folk songs

In re Wihtol v. Wells, 231 F.2d 550/109 USPQ 200, I have recently found the sheet music to "My God and I". The melody somewhat resembles the melody commonly used for "How Great Thou Art."

On the inside back cover is a section entitled "The Copyright Law (and some of its interpretations)" After two passages from the 1909 statute comes a subsection entitled "Interesting Decisions and Rulings" with four conclusions or lessons drawn from court rulings. None of the statements refers to a case by parties, but they identify Judges and Courts. The first, judging by the date and venue cited, draws on Chautauqua School of Nursing v. National School of Nursing, 211 F. 1014/C.O.B#17, 35. The second apparently refers to Cooper v. James 213 F. 871/C.O.B#17 40. The third and forth draw from the same case, which I haven't identified yet. The attribution is to "District Judge Ray, New York, December 8,1913."

I find most interesting the first of these interpretations. It seems to go beyond Chautauqua School v. National School as I read it. In that case, Judge Hazel stated that

	It makes no difference that complainant did not originate
	the method of giving hypodermic injections or that the
	subject matter of its lecture was taken from a common
	source, as it is clearly apparent that it was the first to 
	subdivide the method into different steps with illustrations, 
	giving each step a prominent heading, and to arrange
	and combine the same in a new and useful way.  In Lawrence
	v. Dana, 4 Cliff. 1, Fed. Cas. No. 8,136, it was substantially
	held that a copyright might be claimed where the author of a 
	book has taken material from sources common to all writers
	if he has arranged and combined the material in a new way,
	and that if he exercised skill and discretion in his
	independent work he earned the right to statutory protection.

This might be read in sweat-of-the-brow fasion, but needn't be. It could just as easily be taken to say what the 1976 law says, that copyright only extends to the arrangement and combination of the preexisting material.

The lesson the publisher of "My God and I" takes from this case, though, seems to interpret in sweat-of-the-brow fasion, for they say, "MATERIAL GATHERED FROM PUBLIC DOMAIN WITHIN THE UNITED STATES...CAN BE COPYRIGHTED and anyone publishing the same material subsequently, may be guilty of infringement ... Judge Hazel, District Court, New York, January 27, 1914."
("My God and I" [sheet music], Kama Company, Glendale, California,
(c) 1935 renewed 1962. All-caps in original). This is ambiguous. It
doesn't say WHEN public domain material can be copyrighted, and when not, but it very easily takes the interpretation that the "gathering" is what confers the copyright, and that the copyright in such "gathered" public domain material extends to the preexisting material itself, rather than just to the arrangement of it or to new matter added by the gatherer.

Perhaps Austis Wihtol saw copyright law through a sweat-of-the-brow lens.

Tim Phillips <hrothgar[_at_]telepath.com> Received on Mon Jun 29 1998 - 19:23:40 GMT