Lomax Jukebox Going Digital Is Great News... But Let's Not Forget That He Claimed Copyright On Cultural Works That Weren't His

from the copyfraud dept

Wed, Feb 1st 2012 7:34pm — Mike Masnick

The NY Times recently reported on the excellent news that "technology has caught up to the imagination of Alan Lomax." In case you don't know, Lomax was something of a global folk music archivist and "ethnomusicologist." He traveled the world, recording local folk music in huge collections. He did this for decades, and apparently wanted to create a giant jukebox so people could hear everything he recorded. And, now, ten years after he died, the collection -- including more than 5,000 hours of recordings -- is going online. It's kicking off with 17,000 tracks, and much more is still being digitized.

The article talks about how he had a "utopian" vision in making this music available:

“Alan was doubly utopian, in that he was imagining something like the Internet based on the fact he had all this data and a set of parameters he thought of as predictive,” John Szwed, a Columbia University music professor and the author of “Alan Lomax: The Man Who Recorded the World,” a biography published in 2010, told The Times. “But he was also saying that the whole world can have all this data too, and it can be done in such a way that you can take it home.”

Now, to be clear, all of this is great, but I do wonder about some of the copyright questions here. Last year, we wrote about the bizarre and convoluted story of how Lomax is credited as a songwriter on a Jay-Z song. Apparently, when he recorded these random folk songs around the globe, he claimed copyrights on the works. This is, of course, questionable. At best, he might have a claim on a copyright to the sound recording only, though even that might be questioned, as his creative input into the recording likely would not be enough to qualify for copyright. The copyright, if any exists, would likely belong to the singers (and possibly whoever wrote the songs, though it's likely that many were simply passed down over time).

And yet, Lomax put a copyright claim on the works, including a recording he did of the traditional work song, "Rosie," recorded by Lomax at Parchman Farm, sung by convicts there. That song became the basis of a song by the Animals -- who didn't use the actual recording. Grand Funk Railroad then covered the song (again, not using the actual recording, but starting from scratch). However, Lomax was still credited as a songwriter, despite having nothing to do with it. KRS-One then sampled a guitar riff (having absolutely nothing to do with the original "Rosie") in a song... which Jay-Z then sampled in his song, "Takeover." Lomax's singular contribution was recording "Rosie," a traditional song which almost certainly was public domain. Even if Lomax could claim a copyright on his recording (still questionable), he had no songwriting credit... yet that's what it morphed into... and then stuck on songs going forward.

Perhaps the copyfraud achieved here created songwriting royalties that are now allowing the financing of this great digital jukebox... but it still makes me wonder just what the copyright setup will be of this jukebox. The folks behind it suggest that they'll be quite permissive, especially for non-profit usage, but it still makes you wonder about whether or not even that level of control is warranted.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: alan lomax, copyright, culture, digital jukebox, folklorist, permission, recordings

15 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

john szwed, 1 Feb 2012 @ 8:00pm

Loma and copyright
You sure that Lomax copyrighted folksongs as a songwriter, and not just as collector or arranger or book edior (when he created a new version or published songs in a book)? I was never able to find him listed as a songwriter of folksongs) although you might think so if you just look at BMI listings which don't distinguish between different types of copyright. You have to go back to the original listing cards to see. I discuss the complexities of this in my book, Alan Lomax: The Man Who Recorded the World, and it's way more complicated than you think.
[ link to this | view in chronology ]
- Anonymous Coward, 1 Feb 2012 @ 8:46pm
  
  Re: Loma and copyright
  Nice plug!
  
  If he's been credited by others as the songwriter for a song that he recorded and then "arranged" in a book of songs, it sounds like *someone* along the way screwed up and misunderstood the copyright on said book.
  
  If it's that complicated and easy to screw up - and then go unchecked after many iterations and permutations of the original work, then it sounds like there's something wrong with the system here.
  
  It also sounds like you've perhaps tracked down some of these facts and hidden them in your book there... I suppose it would be pretty crass to go download the book to see what you had to say about it.
  [ link to this | view in chronology ]
- BeeAitch (profile), 1 Feb 2012 @ 11:09pm
  
  Re: Loma and copyright
  "...and it's way more complicated than you think."
  
  Why?
  
  Answer: COPYRIGHT!
  [ link to this | view in chronology ]
  - BeeAitch (profile), 1 Feb 2012 @ 11:14pm
    
    Re: Re: Loma and copyright
    Addendum in case any of our copytard 'friends' are too slow to comprehend: ABOLISH 'COPYRIGHT'.
    
    'Copyright' is stealing (not infringing; different concept altogether: in this case outright THEFT) from the public domain.
    [ link to this | view in chronology ]
  - Suja (profile), 2 Feb 2012 @ 2:54am
    
    Re: Re: Loma and copyright
    yup & no reason for it except to feed some people's power trip
    [ link to this | view in chronology ]
Anonymous Coward, 1 Feb 2012 @ 9:39pm

He deserves the _correct_ kind of credit
Lomax deserves our eternal gratitude for preserving this cultural legacy, not an eternal copyright on that legacy.

(Or: Credit for reputation =/= credit at the bank.)
[ link to this | view in chronology ]
Zos (profile), 1 Feb 2012 @ 10:16pm

That was a good plug, upvoted. I'll even seed your book for awhile if i remember :)
[ link to this | view in chronology ]
Anonymous Coward, 1 Feb 2012 @ 11:32pm

I think most people would consider themselves to be 'non-profit'. That's about as much connection Lomax had to writing those songs. Do his heirs get royalties?
[ link to this | view in chronology ]
Dixon Steele (profile), 1 Feb 2012 @ 11:50pm

Tangled web
Just to emphasize, because the article reads slightly ambiguously on this point: Jay-Z (well, Kanye West, really) only sampled a vocal from the KRS-One track. That means Lomax is credited on a song that contains a vocal (but no music) from a song that contains a sample of a fully original guitar solo from a cover of a cover of a song that Lomax heard some people sing one time.
I agree with the other commenters that it's hard to say what Lomax's intentions were, but... there's something wrong with a system that leads to that sort of result.
[ link to this | view in chronology ]
- Anonymous Coward, 2 Feb 2012 @ 12:49am
  
  Re: Tangled web
  Search for "Jay-Z Takeover" on WhoSampled and you be surprised how many samples and credits that music should have.
  
  http://www.whosampled.com/search/samples/?q=jay%20z%20takeover
  
  Also the people who sampled that music may have to credit the ten others from whom Jay-Z took samples from not counting the other people that those guys have sampled too.
  
  My head hurts just to think about it, this would be like paradise for copyright trolling.
  
  Have the troll lawyers already caught on to the fact that there is software out there that can take a music and compared it to thousands of other melodies to find similarities?
  
  Oh this will be like shooting fish in a barrel.
  [ link to this | view in chronology ]
- Anonymous Coward, 2 Feb 2012 @ 12:53am
  
  Re: Tangled web
  Look at the long tail:
  
  Other songs sampled in Jay-Z's Takeover:
  
  Five to One Five to One by The Doors (1968)
  
  Fame Fame by David Bowie (1975)
  
  Sound of Da Police Sound of Da Police by KRS-One (1993)
  
  Cash Money Is an Army (Radio) Cash Money Is an Army (Radio) by B.G. (1998)
  
  The Watcher The Watcher by Dr. Dre (1999)
  
  Oochie Wally Oochie Wally by QB Finest, Bravehearts and Nas (2000)
  
  Sample chain found! songs that sampled Jay-Z's Takeover:
  
  Ether Ether by Nas (2001)
  
  The Rape Over The Rape Over by Mos Def (2004)
  
  I Just Wanna Rhyme I Just Wanna Rhyme by Pumpkinhead (2005)
  
  I'm a Hustla I'm a Hustla by Cassidy (2005)
  
  300 Bars and Runnin' 300 Bars and Runnin' by The Game (2006)
  
  Where's Da G's Where's Da G's by Dizzee Rascal feat. UGK (2007)
  
  Sledgehammer Sledgehammer by Motive (2008)
  
  I Don't Give a Mother F*** I Don't Give a Mother F*** by Deez Nuts (2010)
  
  Source:
  http://www.whosampled.com/sample/view/51574/Jay-Z-Takeover_Jay-Z%20feat.%20Memphi s%20Bleek,%20Sauce%20Money%20and%20Wais%20P-Celebration/
  [ link to this | view in chronology ]
Anonymous Coward, 2 Feb 2012 @ 12:06am

Sheep be prepared!
Sheep Cyclone

When sheep panics.
[ link to this | view in chronology ]
Vidiot (profile), 2 Feb 2012 @ 4:52am

Old-school process, too
It's probably also helpful to remember that these derivative recordings were produced within the "major label" system... which meant that when an artist recorded a cover of someone else's work, record company staffers would routinely seek to credit songwriters, so as to avoid "trouble" later. It would seem unlikely that those folks would understand the nature of Lomax's contribution, and would simply assign a composer credit.
[ link to this | view in chronology ]
Mockingbird (profile), 2 Feb 2012 @ 5:08am

we should make distinctions
Did Lomax ever enforce his claims, asking for injunctions against anyone who reprinted the songs he collected? If so, then we may fairly find fault with him. If not, his registration of claims may have been intended to be a way of protecting downstream users. In the 1930s, a record label recorded "The Wreck of the Old '97." They found the author of the words and paid him for his contribution. (The tune, The Ship that Never Returned by Henry Clay Work, was in the public domain by then.) But then another claimant came forward, claiming he was the author, and that the label had violated his common-law right of first publication. The case, David Graves George v. Victor Talking Machine Company, 17 USPQ 133 (D.N.J, 1933), 20 USPQ 107 (3rd Cir., 1934), 293 U.S. 544 (1934), 293 U.S. 377 (1934), 38 USPQ 222 (D.N.J, 1938), 42 USPQ 346 (3rd Cir., 1939), certiorari denied 308 U.S. 611 (1939), rehearing denied 308 U.S. 638 (1939), 309 U.S. 693 (1940), went on for about 7 years. Perhaps with cases like the George case in mind, Oscar Brand wrote in 1962,
If I were to sing "The Battle Hymn of the Republic on a program, the "music clearance" department would insist on knowning the name of some book or publisher who would be willing to claim authorship. (The Ballad Mongers: Rise of the Modern Folk Song, Funk & Wagnalls, New York, 1962, p. 209)
Registering copyright claims may (or may not) have been Lomax's way of saying that he would take responsibility if any RFP claimants for any of the songs, or parts of them, ever came forward. Also it may (or may not) have been intended strengthen the case, by making an official record of the publication, that any such claimants in the songs, or parts of them, had "acquiesced" in the publication of the songs, and so lost their common-law rights. Finally, we should remember that in those pre-Feist days, some circuits had a "sweat of the brow" theory according to which a collector might indeed claim copyright in songs collected. This was how Wihtol v. Wells, 231 F.2d 550 was interpreted by at least one commentator.
[ link to this | view in chronology ]
MbAllen (profile), 2 Feb 2012 @ 2:16pm

Zombie lies about copyright -- Again!
In his bio of Lomax, John Szwed writes:"Collectors copyrighting folksongs was not unusual at the time. Carl Sandburg, Zora Neale Hurston, Bela Bartok, Cecil Sharp,Percy Grainger, Ralph Vaughn Williams, and even Lawrence Gellert, the most politically leftist of all the collectors, all filed claims for copyright, though none of them shared earnings with the singers." Alan did share his earnings with the singers from whom he collected.

Neither Alan Lomax nor his father ever filed claims for copyright on individual songs. It was their book publisher Macmillan who did this -- by 1950 the copyright devolved back to Alan. It was a large music publisher, who looted their entire catalog during the 1950s, filing copyright on the songs using false names, such as "Paul Campbell" (among others) as author. Alan Lomax sued them, winning a partial settlement in which he was allowed a portion of the author's half of the earnings (contrary to his wishes) as collector and arranger. He would have preferred to have had a segment from the publishers' credit. Thus, Lomax is being excoriated today for winning a settlement in a lawsuit with a large corporation, which still owns the copyrights and is still raking in mechanical and other fees (50% of the royalties).
[ link to this | view in chronology ]