[pd-discuss] Is the Work of Bessie Smith in the Public Domain?

Tue Apr 2 17:42:43 UTC 2013

Dear Peter,

Thank you very much for taking the time to write such a clear and
comprehensive response. This is very helpful.

All the best,
Sam

On 26 March 2013 01:57, Peter B. Hirtle <pbh6 at cornell.edu> wrote:

>  So two caveats.  First, what I say would only apply to copyright status
> in the US: it would be different in the rest of the world.  Second, music
> copyright is very, very hard.  It is difficult to say anything with
> certainty about it, and what I say below is quite possibly wrong.  About
> the only thing that we can be certain about is that the person who posted
> these files to the Internet Archive doesn’t know what they are talking
> about and is doing open knowledge a disservice by mischaracterizing the
> works.****
>
> ** **
>
> With any work of music, there are two copyrights: the copyright in the
> musical work (think sheet music) and the copyright in the sound recording.
> Let’s consider musical works first.****
>
> ** **
>
> Some of the musical works are likely to have entered the public domain.
> “Alexander’s Ragtime Band,” for example, was written in 1911.  I am going
> to guess that it was published then and so, because it is earlier than
> 1923, is in the public domain in the U.S.  It would also be in the public
> domain in those countries that follow the rule of the shorter term.  But in
> those countries that follow a “life+” copyright term and which don’t follow
> the rule of the shorter term, it would still be protected by copyright
> because Irving Berlin only died in 1989.  Even in a life+50 country, his
> copyright would not expire until 2040.  So theoretically the Berlin estate
> could sue for copyright infringement in a country like Columbia (which I do
> not believe follows the rule of the shorter term).****
>
> ** **
>
> Bessie Smith was active starting in 1923 so it is likely that some of the
> songs were published after that date and would still be protected by
> copyright.  I see, for example, that the Harry Fox Agency is licensing
> reproductions of the first song on the list, “A Good Man is Hard to Find,”
> written by Eddie Green.  In my experience, HFA, ASCAP, and the other
> licensing and performance agencies often lie about the copyright status of
> a work (which is why I assume that they do not include copyright
> registration numbers in their databases), but it is likely that some of
> these musical works are still protected by copyright.  You would need to
> provide publishing information on each work, as well as check the registers
> of the Copyright Office.****
>
> ** **
>
> As for the sound recordings, those that were made prior to 15 Feb. 1972
> are technically in the public domain – but only if we define the public
> domain as works that are not protected by federal copyright law.  Everyone
> one of them, however, is still protected by state (not federal) common law
> and statutory copyrights, as Naxos found out when it tried to distribute
> European recordings that had entered the public domain in Europe but whose
> American common law rights were owned by Capitol.  No state copyright will
> expire until 2047 (though don’t quote me on that – I would want to confirm
> that date in June Besek’s report on “Copyright Issues Relevant to Digital
> Preservation and Dissemination of Pre-1972 Commercial Sound Recordings by
> Libraries and Archives” found at
> http://www.clir.org/pubs/reports/pub135/contents.html).  This is why the
> recordings released by the National Jukebox at the Library of Congress (
> http://www.loc.gov/jukebox/) are only available for streaming even though
> they were all made between 1901 and 1925.  Sony owns the copyright in the
> recordings and will only grant LC permission to stream them.****
>
> ** **
>
> In short, some of the musical works in the Bessie Smith collection are
> likely still protected by copyright and all of the sound recordings are
> protected by state copyright.  ****
>
> ** **
>
> I have no problem with the Internet Archive allowing users to post
> material that is potentially infringing to its servers.  That is what the
> “safe harbors” in US copyright law are for.  I am sure that Brewster Kahle
> would remove the material promptly if a copyright owner would ever
> complain.  And it is unlikely (but not impossible) that the current owner
> of the copyright in either the musical work or the sound recording might
> chose to bring legal action against the person who posted the material.  It
> does bother me, though, when bad information, such as declaring items to be
> in the public domain, appear in IA or Wikipedia or anywhere else when that
> information is just plain wrong.  ****
>
> ** **
>
> *Peter B. Hirtle*, FSAA****
>
> Senior Policy Advisor****
>
> Digital Scholarship and Preservation Services ****
>
> Cornell University Library****
>
> 2B53 Kroch Library
> Ithaca, NY  14853
> peter.hirtle at cornell.edu
> t.  607.255-4033
> f.  607.255-9524****
>
> http://vivo.cornell.edu/individual/vivo/individual23436****
>
> *Copyright and Cultural Institutions: Guidelines for Digitization for
> U.S. Libraries, Archives, and Museums:*
>
> *http://hdl.handle.net/1813/14142*****
>
> ** **
>
> ** **
>
> ** **
>
> *From:* pd-discuss-bounces at lists.okfn.org [mailto:
> pd-discuss-bounces at lists.okfn.org] *On Behalf Of *Sam Leon
> *Sent:* Monday, March 25, 2013 2:01 PM
> *To:* Public Domain discuss list
> *Subject:* [pd-discuss] Is the Work of Bessie Smith in the Public Domain?*
> ***
>
> ** **
>
> Hi All,****
>
> ** **
>
> The work of one of my favorite artists, Bessie Smith, is up on the
> Internet Archive:****
>
> ** **
>
> http://archive.org/details/BessieSmithMp3AudioSongs****
>
> ** **
>
> She died more than 70 years ago<http://en.wikipedia.org/wiki/Bessie_Smith>. Can
> any of you lovely folk shed any light on whether those works on the
> Internet Archive are in the public domain and tell me whether you know of
> any copyright issues that surround her work?****
>
> ** **
>
> All the best,****
>
> ** **
>
> Sam
> ****
>
> ** **
>
> -- ****
>
> Sam Leon****
>
> Project Manager****
>
> Open Knowledge Foundation
> http://okfn.org/
> Skype: samedleon****
>
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-- 
Sam Leon
Project Manager
Open Knowledge Foundation
http://okfn.org/
Skype: samedleon
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