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

Tue Mar 26 01:57:12 GMT 2013

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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