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Q: Music usage rights of old recording ( Answered,   4 Comments )
Question  
Subject: Music usage rights of old recording
Category: Arts and Entertainment > Music
Asked by: isound-ga
List Price: $20.00
Posted: 25 Apr 2002 07:43 PDT
Expires: 02 May 2002 07:43 PDT
Question ID: 5126
I am recording a song using vocals from a very early (1927) recording
of Sugar Baby by Dock Boggs. I have written the music and his vocal is
"sampled" and used in the track. I am going to release this recording
and would like to know where to get the rights (or if anyone actually
owns them). I took the vocal from a Smithsonian Folkways compilation
of Harry Smith's recording.
Answer  
Subject: Re: Music usage rights of old recording
Answered By: alexander-ga on 25 Apr 2002 09:15 PDT
 
Remember that this is not legal advice. Consult a lawyer if you want
to be certain. That in mind...

Good news! Assuming the work was first published prior to 1946, it is
in the public domain, and you may use it however you wish.

According to http://fairuse.stanford.edu/library/faq.html , for works
first published prior to 1950, copyright expires after 28 years. It
may, however, be renewed for another 28 years. Therefore, if your song
was first published in 1927, its copyright expired no later than 1986.

Thanks for using Google!

Search terms used: audio copyright years life of author

Clarification of Answer by alexander-ga on 30 Apr 2002 15:20 PDT
It appears that this answer may be incorrect. Please refer to
sugarbaby-ga's comment below for a more complete discussion of the
issues involved. Thanks.
Comments  
Subject: Alexander's answer ignores the Bono Act
From: tepples-ga on 25 Apr 2002 09:39 PDT
 
I'm not a lawyer either.

=== Copyright term ===

://www.google.com/search?q=copyright+term+expiration
found http://www.loc.gov/copyright/circs/circ15t.html

alexander wrote:

> Therefore, if your song was first published in 1927, its copyright
> expired no later than 1986.

Wrong.  This ignores the Copyright Act of 1976, which extended the term of
subsisting copyrights to 75 years, and the Sonny Bono Copyright Term Extension
Act of 1998, which extended the term of subsisting copyrights to 95 years.
  http://www.wikipedia.com/wiki/Sonny_Bono_Copyright_Term_Extension_Act

However, there is a case pending before the Supreme Court of the United States,
Eldred v. Ashcroft, to decide whether the Constitution authorizes Congress to
extend the term of subsisting copyrights.
  http://eldred.openlaw.org/

=== Contacting the copyright owner ===

://www.google.com/search?q=dock+boggs+sugar+baby+1927
found http://www.angelfire.com/folk/longtimecoming/dockboggs/rev_blues.html

Revenant Records issued "Dock Boggs - Sugar Baby" on compact disc in 1998.
Contact Revenant to ask whether or not the samples are available for licensing.

://www.google.com/search?q=revenant+records
found http://www.revenantrecords.com/
"Any questions can be directed to info@revenantrecords.com"
Subject: Re: Music usage rights of old recording
From: penguin-ga on 25 Apr 2002 09:43 PDT
 
Hello I sound!

I found some more information that may help you with you.
Since Smithsonian Folkways published the track you are using for your
recording, I recommend downloading the Smithsonian Folkways Recordings
Master Recording License Request Form
http://www.folkways.si.edu/licenserequest.htm

”Print this form, complete it and fax it to Cathy Carapella (fax:
914-793-2671) or download this form to MSWord, complete it and attach
it in an email to cathy@diamondtime.net. Please allow up to five
business days for response to this request.
Note that this request is for use of the master recording only.
Separate permission must be obtained from the song's publisher(s).

The use of any Smithsonian Folkways Recordings master requires a
credit. Our preferred credit copy is: "[Track Title]" by [Artist] from
the recording entitled '[Recording Title],' [original Record label]
[original catalog number], provided courtesy of Smithsonian Folkways
Recordings. [Copyright year]. Used by permission.

Additional credit may be required and will be specified in license
agreements.

For more information please contact:
Cathy Carapella
ph: 914-395-1952
fax: 914-793-2671
cathy@diamondtime.net

Licenses and correspondence should be mailed to:
Smithsonian Folkways Recordings
c/o Diamond Time Ltd. 
73 Spring Street, Suite 504
New York, NY 10012

Additional Websites that may interest you:

For a Practical Guide to Licensing & Clearances, courtesy of
Smithsonian Folkways Recordings' contractor Diamond Time
http://www.diamondtime.net/guide.html


A Brief Musical Biography of Dock Boggs
Smithsonian Folkways
http://www.folkways.si.edu/harry/dockbio.htm

Search Terms Used: 
music recording rights lyrics  vocal sampling legal
Harry Smith Dock Boggs

I hope this helps!
Penguin
Subject: Re: Music usage rights of old recording
From: jommelli-ga on 25 Apr 2002 11:39 PDT
 
I am not a lawyer either, but Title 17, Chapter 3, Sec. 301 of the US
Code states

"a -With respect to sound recordings fixed before February 15, 1972,
any rights or remedies under the common law or statutes of  any State
shall not be annulled or limited by this title until February 15,
2067. The preemptive provisions of subsection (a) shall apply to any
such rights and remedies pertaining to any cause of action arising
from undertakings commenced on and after February 15, 2067.
Notwithstanding the provisions of section 303, no sound recording
fixed before February 15, 1972, shall be subject to copyright under
this title before, on, or after February 15, 2067."

Sure sounds to me that the recording itself is free of copyright,
though the music may still be under protection.

I found this specifically at 
http://www4.law.cornell.edu/cgi-bin/htm_hl?DB=uscode17&STEMMER=en&WORDS=sound+record+&COLOUR=Red&STYLE=s&URL=/uscode/17/301.html#muscat_highlighter_first_match
    
Hope this is useful.

Jommelli
Subject: Re: Music usage rights of old recording
From: sugarbaby-ga on 26 Apr 2002 09:36 PDT
 
Among other things, I am in the music business and my specialty is
ragtime. Our little company reprints lots of old music, so even though
I'm not a lawyer, I know a little bit about copyrights.

I can unequivocally state that the official answer you received from
Google is wrong. The quick answer is that most all commercial
compositions published from 1923 forward are still in copyright. The
song "Sugar Baby" is still under copyright by the publisher, Shapiro
Bernstein & Co., Inc., and can easily be licenced on the web. The
current rates for licensing are 8 cents per copy for songs that are 5
minutes long or less, with a minimum license for 500 copies, or $40.
If your track is longer than 5 minutes, the rate is 1.55 cents per
minute or fraction of a minute.

You can find the current statutory rates here, on the Harry Fox Agency
website:
http://www.nmpa.org/hfa/ratecurrent.html

To do that, go to the Harry Fox Agency's repertoire website:
http://www.songfile.com
1.) In the search field, enter this search term: "sugar baby"
2.) You will see a list of recordings of this song. Scroll down about
1/3 of the page until you see the recording by "various," on the album
"Hung Up On The 20's."
3.) Click on the circle to the left of the title.
4.) The next page will ask what type of license you need. Click on
"Make a Recording."
5.) The next page is a questionnaire. Answer the questions and click
"Submit."
6.) The next page contains the terms of your requested licence. Read
it thoroughly (it's a good idea to print this out), then click on
"Accept" to accept the terms of the license.
7.) The next page will show that you can license this composition from
the publisher through the Harry Fox agency. Click on "Continue License
Request" to continue.
8>) Fill out the form on the next page. You will have to know exactly
how long the track is, so it is a good idea to wait until your
recording is complete to get your license. (Hint: If you plan to use a
sample of the original recording, make sure you have permission to do
this. Please see my note below on the sound recording copyright.)

That means that you can use the underlying composition, but because
you are using a sample of another recording, you have another problem.

In any recording, there are three inherant copyrights - lyrics, music
and the master recording. Until 1972, there was no copyright
protection for sound recordings. However other laws, including state
laws, property laws and fair buisness practices often do protect older
sound recordings as property, and those rights do not expire. You
didn't say when the original recording was released, but here's a
kicker - if the recording was originally released prior to 1972 (and
thus has no copyright protection), but has been remastered and
released in 1972 or later, the record company has copyright protection
over the original recording as well as the remastered recording. Sound
confusing? It is.

Anyway, since the Smithsonian Institution owns the rights to all the
Folkways recordings, you should contact their legal department to get
permission or to buy a license to use the samples. Unfortunately,
there are no statutory (prescribed by law) compulsory licensing
provisions for sound recordings like there are for the underlying
composition, so you will have to negotiate the terms yourself. The
copyright holder does not have to give you a license to use their
recording if they don't want to. Good luck!

You can download a licensing request for the Folkways recording here:
http://www.folkways.si.edu/licenserequests.htm

Once you have downloaded and printed the form, you must fax it to
Cathy Carapella at 914-793-2671.

Make sure that you get permission to use the samples before you get
the license for the underlying composition from the Harry Fox Agency,
since you will need the actual lenght of the track to get your
license.

For more information on music copyrights, please see the links page I
posted on my own website:
http://www.rag-time.com/copyright/copylinks.html

Hope this helps!

Tracy

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