This week I am excited to welcome a new guest blogger to JvdLD. In this excellent article Elmore T examines the issue in relation to the copyright of Blues music and who are the rights owners to the artists’ works.
I recently came across an article published on the Boingboing entertainment website that outlined the legal issues faced by a music retailer when they decided to make old, out of print audio recordings available to the public for a fee.
My interest in it was, at first, purely about the recordings that were being made available in digital format for the first time but I also felt sure that the Esteemed Owner of this blog would find the unusual legal problems that this retailer faced interesting. We then had a brief discussion about why it was such an extra tricky area and he invited me to write an entry for this journal. I was initially rather hesitant about accepting his kind offer as this blog primarily revolves around issues pertaining to the legal profession and I have no qualifications or experience in the field. However, on reflection, I felt that this original article when put together with a few recent changes in the music world could make an interesting diversion.
The retailer in question is Amoeba Records, a California-based chain of record shops that has recently made a huge catalogue of very old audio recordings available to download digitally on a track by track basis. The usual process for this type of service would see the retailer have contracts in place with the record labels, artists or publishing organisation involved and would lead to payment of royalties to those interested parties directly on a per sale basis.
Where this particular case runs into choppy water is in trying to identify just who those interested parties are and how to go about paying the fees owed. The early Twentieth Century saw countless recording companies spring up, issue a few recordings by obscure local musicians then disappear, as quickly as they appeared, into either bankruptcy or into merger with rival small labels. Most of these new companies would spin-off a few subsidiary labels to deal with different genres. These slightly bigger labels then merged with their competitors over and over again until eventually forming the enormous corporate monsters that we know today.
On top of that problem they face another layer of uncertainty when trying to identify the composer of the track and even the artist recording the material can be shrouded in mystery.
My specific area of interest in these old recordings is Blues and this genre is perfect to use as an example of the “Find The Lady” type trail Amoeba have to try to follow. You have to bear in mind the period in which these recordings were made. We’re talking about Pre Civil Rights Movement America here and the vast majority of musicians were extremely poor both financially and educationally. Racism and Segregation were commonplace, any brief research into the recordings made during the period will find constant use of phrases such as “Race Records”, “Race Charts” and far worse that seem to have been used without the slightest qualm as straightforward everyday language but appear so horrifically jarring to our eyes. Even the artists that moved away from the Sharecropping Plantations of the Deep South and headed north for the bright lights of Detroit and Chicago were, in the most generous terms possible, taken advantage of and subjected to, less overt but still very real, discrimination. That’s not to say the advantage taking was always an entirely one way street. Many artists “Lucky” enough to be given contracts by recording companies were in the habit of doing a little moonlighting by recording pretty much the same track (with the odd word and arrangement change) for several different labels using false names.
A quick and easy example of the problems faced by anyone attempting to identify just who was involved in a recording can be given by casting a brief glance at the early career of one of the big names in the genre. John Lee Hooker may well have ended his life as a Multi Grammy winning star but when he started recording in the 1940s things were very different. I’ve picked him as an example for a couple of reasons. Firstly, I’m very familiar with his work. Secondly, he’s famous enough to have had a lot of easy to find research done. His first proper contract was with Modern Records but it is well documented that he would often finish a recording session with them and head straight to another studio, and cut sides for them. He recorded for the likes of Chess, Vee Jay, Chance, De Luxe and many others that have no doubt slipped under the radar of research. His use of pseudonyms varied from the blatant John Lee (or Johnny sometimes with the Lee, sometimes without) Booker/Cooker, to the slightly more imaginative Texas Slim or Birmingham Sam via all manner of Boogie Man word plays.
That deals with one layer of murkiness. You then have to deal with the Composer/Songwriter part of the puzzle. Again, using Hooker’s early output as the example and Modern Records in particular we find some very underhand tricks being played. Modern were owned and run by the four Bihari Brothers. The brothers were not involved in any of the musically creative processes and yet appear as at least co-author on the majority of releases. They often used pseudonyms as well. Ling, Taub and Josea appear on many records but never really existed, they were just names used by the Bihari Brothers to claim royalties and keep the money rolling in at the expense of the real artist involved.
Modern Records went bankrupt in the mid 1960s and their catalogue of records and the rights associated with them went on to be sold and then licensed and resold to several labels/publishing companies.
If the history of a big name in the industry can be so muddied and hard to follow, you can only guess at the mind-boggling labyrinth facing anyone trying to hunt down just who owns the rights to an obscure recording made a century ago for a label that disappeared not long after.
Amoeba Records have attempted to trace as many Rights Holders as possible and to secure the relevant permissions. For those labels and artists that they have been unable to find a current legal owner for, they have placed money equivalent to the usual fees payable in an ESCROW account so it is ready to hand as and when a Rights Holder makes a claim. It is this attempt to be honest and above-board that the article suggests could potentially land them in hot water by poking their head above the parapet and drawing attention to themselves. Their “Saving Grace” may turn out to be either the fact that it’s more than possible that the big multi label owning corporations may well be unaware of exactly which titles they hold the rights to, or the risk that anybody attempting to take action against the retailer for issuing these recordings without prior permission takes. They would be well within the law to try to take action and claim not only the fees that would have been due to them if permission had been secured in advance but also damages for the unlicensed use and expenses incurred in pursuing the case. However, it would be argued that the retailer had made every effort to trace the legal owner and had publicised the issuing of the tracks, as well as acting in “Good Faith” by setting aside funds to cover any rights fees payable. When you also consider the reasonably small number of people who would be interested in purchasing these “Niche Interest” recordings, it does seem unlikely that any sensible law firm would go after the retailer in an aggressive manner.
I would urge you to read the report as it has points of interest for those interested in the legal aspects as well as those interested in the music and social history being made available to all.
In late 2011 a big change in the U.K. law covering Recording Rights came into force. It was heralded as a huge success for musicians both big and small.
Dubbed “Cliff’s Law” by sections of the media, due to Cliff Richard’s high profile campaigning in favour of it, the change meant that the Copyright on recorded performances were extended from 50 years to 70 years. The rules for Composers and Songwriters were left unchanged as these Rights were already guaranteed to stay valid until 70 years after the death of the writer.
Although Cliff was the main public face of campaigning for the change, plenty of other Big Fish were pushing very hard in the background. The Beatles too, for example, were getting very close to the 50 year deadline after which their recorded performances would lapse into Public Domain. Many musicians hailed the extension of Copyright as being essential to keep royalty cheques coming to less famous session musicians and backing singers. That is certainly true in many cases and it’s also true that people should continue to be paid for creative work they have done but as this excellent article in The Guardian shows, it’s not going to benefit all the most needy of cases and that the biggest winners will most certainly be the big name record companies. Bob Stanley’s piece on the subject is well worth a read, as are the comments that follow it. The debate about whether a “Use It or Lose It” clause is adequately covered by the act is of particular interest. As previously stated, I am not qualified in any way to make legal comment but it does seem drastically unfair for a performer not to be able to access some income from their own previous work when the current owner has no interest in seeing it reissued after the original copyright period has elapsed. Record companies just sitting on, or “Mothballing”, catalogues is a sad state of affairs for both the artists and those interested in hearing/owning a copy of the work.
One happy note I can add to The Guardian article is that the artist they highlight as an example of those that potentially lose out due to the extension, Nic Jones, is well enough to be able to perform live again. He is still not able to play instruments professionally but he can sing and has appeared at several big festivals.
One final event I wanted to cover on the topic of Rights to reissue old recordings is, thankfully, a very good news story for both Audiophiles and Social History buffs. Jack White (of White Stripes fame) has used his own Third Man Records label to team up with the Scottish based Document Records and has secured the Licensing Rights to reissue the 25,000 Pre-War Blues titles on Document’s books.
This is excellent news as they are to be released exclusively on 180 gram Vinyl record and have been sympathetically remastered without being overly polished. The depth and quality of sound that can be achieved using this better grade of vinyl far surpasses anything digital or CD based. Most of the bigger early bluesmen are going to be included in the project as well as some far less well-known names. It is said that some remasters will be taken from the only known copy of an issue. Jack White has said in many press releases that he is in the lucky position of not really needing Third Man to make a profit, he says:
“At Third Man Records, we don’t really care. We just want to create things that we want to see exist and if it breaks even, we’re lucky – if not, it doesn’t really matter.”
Document’s website is worth a visit to read the full story of this invaluable project, there’s also a selection of some really great artwork in the form of early posters to look at. Their usual musical output is a mix of Various Artist Compilations or Best Of… single artist CDs and downloadable digital media. So this new project is exciting for them too.
I hope you have found at least some of this ramble of interest and do keep in mind that I write purely as a music fan and not as any kind of legal authority. Even the parts solely about particular artists are subject to conjecture.
Nothing in Blues is straightforward. Take, for example, the one legend that most people “Know”, the almost Faustian story of Robert Johnson going down to “The Crossroads” at midnight and selling his soul to The Devil in exchange for tuning his guitar in a magic way. There are so many versions of this story and some people do take it seriously. There are arguments that it wasn’t The Devil that Johnson met that night, it was Legba. There’s half a dozen or so places that claim to be “The Crossroads” in question. There’s also quite a bit of “evidence” that it wasn’t even Robert Johnson that the stories started out featuring but another bluesman working the same area called Tommy Johnson. This last scenario was the one included in the Coen Brothers film “O Brother, Where Art Thou” where Tommy was played by acclaimed musician/producer Chris Thomas King.
All these stories came about simply due to the fact that a man got really good at playing guitar, really fast and wrote some easy to misunderstand lyrics.
Robert Johnson seems to be the usual focus of these stories though and, to add some perceived weight to Soul Selling story, he did die very young in strange circumstances. The most common story is that he was poisoned by a jealous husband. There are witness reports that he was given an already open bottle of whiskey and drank it all despite knowing how risky that was with the “Gut-Rot” spirits that were sold at the time. There’s even arguments amongst scholars about what type of poison was used as it took Johnson days of agony to die, during which time he went through such torment that he rolled on the floor and made barking noises like a dog which, of course, were then said to be the Hellhounds coming to claim him. And, to end the story in the manner you would expect, there’s at least three places that are said to be his grave.
One of his most famous recordings is called “Hellhound On My Trail” (1937) and this is often cited as acknowledgement of his devilish deal. It is, of course, nothing of the kind. That exact phrase had been used on several records that he would have been well aware of. Likewise “Cross Roads Blues”(1936) has nothing to do with meeting up with Old Nick, it’s more to do with trying to get home safe before trouble finds you.
I haven’t even scratched the surface of that one well-known story, the boring truth of which is probably just that Johnson was very talented, practised damned hard with another local excellent guitarist called Ike Zimmerman. Or possibly Isaiah Zinnerman, or maybe it was Tommy after all, or maybe…
These legends, along with the more important truthful lyrical content of early recordings make for great Social History and shed light, albeit a rather murky light at times, on an era of massive change that is till, just about, within living memory but vastly different to today.
By Elmore T Copyright © 2013
The views expressed are those of the writer(s) and may not reflect the views of JvdLD. This article does not constitute legal advice. In relation to posts by a guest Author(s), these are made by them through their own practical experience or knowledge of the subject in question or as a matter of their own opinions. Opinion posts expressed by the Author(s) or by readers of the blog on the site’s comment section are those of the individuals in question and do not necessarily represent the views and opinions of John van der Luit-Drummond or JvdLD. The copyright of the individual Authors who guest post on this blog are theirs alone and John van der Luit-Drummond lays no claim to their intellectual property other than to be allowed through mutual agreement to display their posts/articles on this blog and share via social media such as sites as (although not limited to) Facebook, Twitter, or LinkedIn.