The Massive Treasure Trove Of Historic Jazz Recordings That Almost No One Has Heard... Thanks To Copyright

from the revisiting dept

Thu, Apr 28th 2011 7:15am — Mike Masnick

Last summer, we wrote about how the National Jazz Museum had acquired a massive collection of old jazz recordings from the 1930s that most didn't even know existed, and how it was being blocked due to copyright. The ABA Journal has now done a more in-depth article about the collection, the copyright issues and the wider problems this represents. It's a really excellent and complete article that touches on a variety of issues from orphan works, state copyright laws pertaining to older sound recordings, copyright extension and the cultural impact of locking up such content:

The collection is, in a word, historic. "It is a wonderful addition to our knowledge of a great period in jazz," says Dan Morgenstern, director of the Institute of Jazz Studies at Rutgers University in Newark, N.J. And, Morgenstern says, "the sound quality of many of these works is amazing. Some of it is of pristine quality. It is a cultural treasure and should be made widely available."

The question, however, is whether that will happen anytime soon. And if it doesn�t, music fans might be justified in putting the blame on copyright law. "The potential copyright liability that could attach to redistribution of these recordings is so large--and, more importantly, so uncertain--that there may never be a public distribution of the recordings," wrote David G. Post, a law professor at Temple University in Philadelphia, on the Volokh Conspiracy blog. "Tracking down all the parties who may have a copyright interest in these performances, and therefore an entitlement to royalty payments (or to enjoining their distribution), is a monumental--and quite possibly an impossible--task."

The museum is rushing to digitize the collection (much of which has deteriorated or was destroyed), but the only way to hear it is to make an appointment at the museum. They insist they're going to try to tackle the copyright issues to release the music, but it's clear that's going to be an incredibly difficult task. What's really unfortunate is how all of these works should be in the public domain, if we just went by what the law said when they were made. Yet, thanks to copyright maximalism, the world and our culture suffers completely unnecessarily.

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Filed Under: copyright, culture, jazz, locked up

48 Comments

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Marcus Carab (profile), 28 Apr 2011 @ 6:19am

Anyone live near the jazz museum and own a micro recording device? If ever there was a time for piracy, this is it...
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John Doe, 28 Apr 2011 @ 7:31am

The solution is easy
Record it, copy it to a thumbdrive, "lose" the thumbdrive where pirates will find it, it gets torrented and the museum issues an apology.
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Anonymous Coward, 28 Apr 2011 @ 7:47am

I thought archiving was a legit fair use - I guess that's why they're able to make appointments for listening?

It's a travesty, none the less, and a great argument for shorter copyright terms.
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Anonymous Coward, 28 Apr 2011 @ 7:55am

State copyright shouldn't be a problem from a constitutional standpoint the states have no authority.
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Chris Rhodes (profile), 28 Apr 2011 @ 7:59am

Once Again
Once again it's up to the pirates to "promote the progress". Someone "accidentally" leak a copy somewhere. We'll do the rest.
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Not an Electronic Rodent (profile), 28 Apr 2011 @ 8:07am

You bunch of thieves
It's disgusting that you would even talk about "freeing" such valuable content. Culture is something that should be locked behind glass and paid for by anyone who wants to appreciate the wonder of it. It is certainly not something that should be listened to much less allow grubby little plebs to get their hands of for free.

Next thing you know they'd want to steal it by making something of their own that sounds like it might once have been sort of the same as a little bit of the middle of one of the pieces and then the walls of civilisation will come crumbling down, the seas will boil and a plague of locusts (lawyers) will be on the land.

THINK before you act you freeloading bunch of sons of.....

Sincerely

- A Recording Industry Executive

(P.S. This is not just because there's a small chance that somewhere 15 years ago we might possibly have acquired a portion of the rights of a bit of this stuff. Besides even if it was how would I know? We don't pay attention to that sort of thing unless we can sue someone for it)
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alex (profile), 28 Apr 2011 @ 8:16am

Why isn't it in the public domain if it's ~80 years old?
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Irving, 28 Apr 2011 @ 8:18am

Re:
Because a lot of companies have paid a lot of politicians a lot of money to make sure that nothing ever again enters public domain.
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Anonymous Coward, 28 Apr 2011 @ 8:21am

*Sets up troll trap

*Quietly Whispers

"Here TAM, Here TAM, Here Tam"

*Puts Troll bait on Troll Trap

"Here TAM, Here TAM, Here Tam"
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Anonymous Coward, 28 Apr 2011 @ 8:22am

Re: The solution is easy
...and the museum issues an apology.

First, they'll have to find who to issue the apology to...
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Anonymous Coward, 28 Apr 2011 @ 8:23am

Welcome to Capitalism, copyrights/trademarks is actually a symbol that the wealthy control the means of production while we just buy the material.

Everything will fall into Public Domain (along with abolishing private property) if the Lower Classes rose up against the Capitalists...
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Killercool (profile), 28 Apr 2011 @ 8:30am

Re:
Here in 'Merica, the lower class is made up of capitalists, too. It's called "upward mobility".
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Anonymous Coward, 28 Apr 2011 @ 8:30am

Re: Re:
I fear sometime in the future "Public Domain" would cease to exist like the capitalists would even allow it to exist. At this point by then I hope people will wake up to see how much of a rotten system Capitalism really is.
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Anonymous Coward, 28 Apr 2011 @ 8:45am

Re: Re:
I think your referring to that most USians have this delusional belief that they can "rise to the top" like the capitalists despite the fact that they will never get as wealthy like JP Morgans, Rockerfellers, Rothchilds, etc.
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jupiterkansas (profile), 28 Apr 2011 @ 9:05am

Re: Re: Re:
JP Morgan, Rockerfeller, and Rothchild all believed they might "rise to the top" someday too.
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Marcus Carab (profile), 28 Apr 2011 @ 9:10am

Re: Re: Re:
To quote one of the Ferengi in Star Trek, "our workers don't want to end the exploitation - they want to become the exploiters"
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Liz, 28 Apr 2011 @ 9:16am

Re: Re: Re: Re:
Behind every great fortune is a crime.
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Chuck Norris' Enemy (deceased) (profile), 28 Apr 2011 @ 9:45am

Re: Re: Re:
Hmmm...patents/trademarks/copyrights are government granted monopolies. So much for free markets.
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Anonymous Coward, 28 Apr 2011 @ 9:56am

i'm a capitalist that supports public domain, am i still a bad guy? i don't think i've even been for exploiting workers, and i have no clue what that has to do with copyright law. there needs to be reform, but can't that happen without changing an entire economic system?
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Anonymous Coward, 28 Apr 2011 @ 9:58am

i'm a capitalist that supports public domain, am i still a bad guy? i don't think i've even been for exploiting workers, and i have no clue what that has to do with copyright law. there needs to be reform, but can't that happen without changing an entire economic system?
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BongoBern (profile), 28 Apr 2011 @ 10:20am

I think copyrights should expire after a period of time. 50 years maybe? The artist and the artist's immediate family and, of course the record company for a lesser period can collect royalties, but if my uncle had a hit record in the 60s (he didn't) why should I be collecting royalties? Music should all, eventually, be in the public domain.
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Ken Peterson, 28 Apr 2011 @ 10:27am

Jazz collection solution
With 60,000 new virus per day, a new solution for dealing with this is needed and has been developed. If I remember, called 'Whitelisting'.

You allow only those sites through with which you've had long relationships. Anyone else has to prove themselves then they're added to the list.

Regarding the Jazz recordings: Find copyrights that have expired, given permissions, or can be bought; produce them and work over the remainder as time allows.
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Anonymous Coward, 28 Apr 2011 @ 10:50am

oh come on. just put it on an insecure server and complain about it a lot and drop hints and the problem will solve itself.
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Marcus Carab (profile), 28 Apr 2011 @ 10:58am

Re: Jazz collection solution
Regarding the Jazz recordings: Find copyrights that have expired, given permissions, or can be bought; produce them and work over the remainder as time allows.

You make it sound so simple - and it really should be - but it's not. In a lot of cases, even just determining if something is still covered is difficult and expensive (if not impossible).

In some cases, filmmakers seeking rights for old songs to use in documentaries and such have spent months and thousands of dollars trying to determine the copyright status of the work, and eventually given up since they were getting nowhere. In another case (trying to dig up the link) a congressional research committee was asked to determine the copyright status of audio works released before a certain date - they returned a nearly 100-page report that in the end basically said "inconclusive"

So unfortunately, it really isn't that simple.
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Rob, 28 Apr 2011 @ 10:58am

Re: Once Again
Someone "accidentally" leak a copy somewhere. We'll do the rest.

Bingo. Accidentally share the thing on the torrents. Then if the copyright police come after you, you've identified the copyright holder!
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Revelati, 28 Apr 2011 @ 11:00am

Well I guess we will just wait for someone with enough balls to pirate the music. It's really a shame that doing the right thing here requires someone to break the law. But then again, that is how you can distinguish good laws from bad laws. Good laws make bad people criminals for the right reasons. Bad laws make good people criminals for all the wrong reasons.

Not allowing our shared cultural heritage to be "shared" because of greed and avarice seems like a really good candidate for some really bad law...
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Anonymous Coward, 28 Apr 2011 @ 11:03am

Re: Jazz collection solution
"Regarding the Jazz recordings: Find copyrights that have expired, given permissions, or can be bought; produce them and work over the remainder as time allows."

While this seems like a practical solution, the point is that after 70+ years these recordings should already be in the public domain. There is no reason for the public to have to pay more to be able to enjoy, share, and build on these works when they should already be a part of our culture.
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An-other-onymous, 28 Apr 2011 @ 11:48am

Re: Re: Jazz collection solution
Channeling Monty Python's "How to do it" (http://www.youtube.com/watch?v=tNfGyIW7aHM)
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Cowardly Anon, 28 Apr 2011 @ 11:54am

Re:
I was totally thinking the same thing.....
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Capitalist Lion Tamer (profile), 28 Apr 2011 @ 12:09pm

That's the best way to experience jazz:
"by appointment."

I'd love to get down there but I've got a concert slated for 3 pm followed by some light book reading around 7 pm. How's Friday looking?

This whole situation couldn't be more ridiculous if it tried. (Like, by wearing the Phillie Phanatic outfit, for example.)

You would think that out of interest of preserving history someone would ease up on the copyright issue. (Of course, I keep thinking that and keep getting disappointed.)
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Nom du Clavier (profile), 28 Apr 2011 @ 12:33pm

Re:
Or make cover versions of everything in the archive. Following the Prince Doctrine this means the original no longer exists, which means there can't have been copyright on it.

Problem solved.
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Anonymously Brave, 28 Apr 2011 @ 12:39pm

The end of the Public Domain...
December 31, 2027: Disney finally convinces Congress to declare that all copyrights never expire; this is made retroactive to the beginning of time.

January 1, 2028: Disney is sued out of existence by the collective heirs of the Grimm Brothers.
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Marcus Carab (profile), 28 Apr 2011 @ 12:57pm

Re: Re: Re: Jazz collection solution
haha... that one had completely slipped my mind. nice.
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ASTROBOI, 28 Apr 2011 @ 1:12pm

I'm a jazz baby....
Decades ago a film was made called "Throughly Modern Millie" which was set in the '20's. The film makers wanted to incorporated a period song titled "I'm A Jazz Baby" and assumed getting clearance would be a simple matter. But as the film neared its release date the song had still not been cleared. It was only after extensive research that they found the copyright belonged to General Mills! It had been bought many years earlier and used in commercials (Have You Tried Wheaties?) and then forgotten. So if a rare original recording of that song had turned up anyone releasing it might have been sued by a cereal manufacturer. And that was way back when copyright made at least a little sense.
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Atkray (profile), 28 Apr 2011 @ 1:17pm

Re:
I think copyright and patent lifespans should be the exact same length of time that doctors warranty their work.
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Killercool (profile), 28 Apr 2011 @ 1:29pm

Re: Re: Re:
Just because I can never be as rich as the Rockefellers, Morgans, or Rothschilds doesn't mean I want everyone to be equally poor. Even someone who does manual labor can become skilled, and thus deserves better reimbursement for their services.
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Rekrul, 28 Apr 2011 @ 2:12pm

The same problem plagues many old movies and TV shows. Trying to track down who owns the copyrights to all the music is expensive and in some cases impossible. Sometimes movies and shows are released with altered music, but often, they just sit in the vault, rotting away...
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aldestrawk (profile), 28 Apr 2011 @ 2:34pm

Re:
This private collection of recordings was acquired by the National Jazz Museum in Harlem last year. Copyright law says that all sound recordings made before February 15, 1972 are under state copyright laws that existed at that time. In 2067 those recordings will finally come under federal law and, thus, enter public domain. Apparently, some state laws had no duration limit. Because of this, unless you track down the copyright holder and what state laws apply you can't reliably license it or be sure it is in the public domain.

�The potential copyright liability that could attach to redistribution of these recordings is so large�and, more importantly, so uncertain�that there may never be a public distribution of the recordings,� wrote David G. Post, a law professor at Temple University in Philadelphia, on the Volokh Conspiracy blog. �Tracking down all the parties who may have a copyright interest in these performances, and therefore an entitlement to royalty payments (or to enjoining their distribution), is a monumental�and quite possibly an impossible�task.�
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Anonymous Coward, 28 Apr 2011 @ 3:33pm

Re:
WKRP, for instance?
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aldestrawk (profile), 28 Apr 2011 @ 5:17pm

Orphan works
The U.S. copyright office made a report about the problem of orphan works and copyright in 2006. Legislation was proposed but never passed by congress. The following is from the referenced article and explains why.

A major reason why these bills stalled was opposition from organizations representing professional photographers, whose works are usually published without any attribution or copyright notice. �That�s why the photographers� refrain is that their photos are orphans from the moment they are put in the stream of commerce,� says Ralph Oman, who teaches at the George Washington University Law School in Washington, D.C., and serves on the council for the ABA Section of Intellectual Property Law. �They fear that if orphan works become the preferred means of finding photos, they won�t get new work,� Oman says.

Photographers are not the only ones fretting about the legislation. �Visual artists and textile creators are worried that their works may not be easy to search, making it hard to identify the copyright owners of these works,� says Dale Cendali, a partner at Kirkland & Ellis in New York City and vice-chair of the Copyrights Division in the IPL section. �They are worried that if orphan works legislation passes, they will be put in a worse position than if there were no legislation.�
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Anonymous Coward, 28 Apr 2011 @ 8:31pm

Gee, I wonder why they thought all IP was at risk?

From Wall St. Journal online 10/07/2008 http://www.marketwatch.com/story/web-firms-bid-for-copyright-clarity-left-hanging?dist=msr_1

"the ongoing effort among Internet firms to tap the value of copyrighted work"
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Howard the Duck, 29 Apr 2011 @ 8:35am

Re:
Ridiculous. The everyone in the USA is a capitalist, no matter what level of capitalism you operate at, you're still capitalist. From selling used books, to an old Harley. Capitalism is based on motivating individuals with accumulation of assets through business acumen, hard work or great inventions, and we would not be the most powerful Nation on earth without it. The only problem is the inherent greed that comes with it, and that can be remedied with a well placed vote or two. Abolishing private property and taking away that motivation would transform the USA into an apathetic third world, and the super wealthy would merely relocate to another country. Lower classes rise up against the capitalists? Which capitalists? The ones pulling $50,000/year selling walnuts? Welcome to the real world, where capitalism is not a bad thing, and 90% of the capitalists are NOT wealthy.
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Joe Publius (profile), 29 Apr 2011 @ 10:15am

Re: You bunch of thieves
Yes! Think of all of those jazz artists who right now cannot collect the royalties or license fees on these works 70 some years later.

Thank you Recording Industry Executive for being the sane voice in this bedlam of whiners complaining about trivialities like "culture".
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Rekrul, 29 Apr 2011 @ 2:52pm

Re: Re:
Yup. They also changed all the music in the show 21 Jump Street. The home video release of the movie Heavy Metal was held up for over a decade because of the music rights.
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ram, 29 Apr 2011 @ 9:56pm

Re: Re: Jazz collection solution
You are right, the music copyright situation is a mess - almost as bad as software patents. My company makes soundtracks for video, i.e. movies and promotional videos. All our music we derive from known classical works which we then modify (highly in most cases) into 'original' music that fits the scene in the video. We start from classical music purely as a defense against lawsuits. It is easy enough for skilled composers to create new works in almost any style, but since most Western music consists only of a few notes (usually 7 or less) and a few distinct note times (say 4 or 5), any musical phrase stands a very high chance of having been used before. Personally, I think copyrights on music should be abolished. Copyrights on recordings, for a reasonable time, say 20 years, OK - but on musical compositions - no, because it has all been done before.
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Anonymous Coward, 1 May 2011 @ 3:46pm

Re: Re: Re:
Capitalism isn't the problem, it's monopolists perverting copyright law to suit them that's the problem.
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Anonymous Coward, 2 May 2011 @ 12:01am

Re:
From your link

"Critics, however, argue that it would unnecessarily weaken the rights of copyright holders without offering any real help to organizations hoping to use the works. "

Here is the problem. IP should not be about the privileges of IP holders. No one is entitled to a govt imposed monopoly. No one. IP should be about what's in the public interest.

"The conflict highlights the ongoing effort among Internet firms to tap the value of copyrighted work"

What about the fact that it allows the public, those who should be the beneficiary of any law, to also better tap the value of these works. What, the public should never be allowed to tap the value of these works? If not, these laws should be abolished. Laws should serve the public, not the IP privilege holders. No one is entitled to a monopoly.

"while shortchanging authors unaware of their weakened protections, according to Lessig. "

But it's OK for the public to get shortchanged when these laws get retroactively extended. But when 'authors' (or, rather, big corporate privilege holders) may face a loss of their unowed privileges, to the public benefit, that's a problem.

""the consequences will be far-reaching, long-lasting, perhaps irreversible and will drastically affect what it means to create and own intellectual property.""

and that's the problem with these laws. They're all about the privilege holders, not about the public. That's mainly why I want them abolished. No one is entitled to a monopoly. These monopoly laws should be granted only to the extent that they help benefit the public. But they're intended beneficiaries are those who own IP. Abolish them.
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udhaya, 16 Jun 2016 @ 8:19am

Copyrights will affect the music lovers
Hi, I'm one of the student in learning jazz in one of the music schools in nyc. Copyrights on this collection will not help people like me..
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