How Copyright Works: Returning Works to Public Domain | Berklee Online
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How Copyright Works: Returning Works to Public Domain | Berklee Online


The public domain is a gigantic area that contains music, literature, books, all kinds of stuff that’s free for everyone to use. We use the public domain a lot. Anything that Bach wrote is public domain, and it’s happened frequently someone would take music of Bach, and add new instruments, sometimes add words even though words weren’t there, and that’s all fine to do. That’s legal. That’s the public domain. That’s what it’s for. It’s too we can use it as inspiration. We can take it, take portions of it, and change it. Again, often, it’s lyrics. That is important to how a lot of works are created. It can lead to interesting issues though, what if two people were to take the same public domain song and add different words? Well, if the melody stays the same, then there’s no issue you can’t say that songwriter B who wrote after songwriter A, that B copied A because it’s the same melody because A copied from Bach or Beethoven, his public domain. There have been many examples of that happening. Paul Simon has a famous song called An American Tune. He took what he had heard from other people that usually goes back to Johann Sebastian Bach and to his St. Matthew Passion, this one chorale melody he has in that song is beautiful. But Bach himself took it from Hans Leo Hassler, so it goes back even deeper into the public domain. Paul Simon said it, said this beautiful melody with his own words. Peter, Paul, and Mary working with Dave Brubeck said it before Paul Simon. Paul Simon made a lot more money on it, but if you listen to the two songs, you can see how close they are and melodically, but that’s not an issue because it’s in the public domain. Sometimes public domain melodies and music can be used in television commercials. I was involved in one where a songwriter had taken a Bach minuet and G tah tah tah tah and he put it into 4, 4 and set 3, 4, tah tah tah, tah tah tah tah and added different chords to it and added words and he had a big hit it was called Lovers Concerto, foolish title. So song but it made a lot of money. What happened was publics wanted to take the Bach minuet, tah tah tah tah tah tah, and they want to set that musically and do six or eight versions of it saying why was focused on the deli section or the midsection of the bakery section and they had different versions of Bach. But the guy who wrote, who adapted Bach said “No you’ve taken from me.” And the issue got really strange is to say well, which of these, when publics took it, are they copying from Bach or are they copying from the guy in the 60’s and end zap you had to kind of split the differences and say “Well, if he added a fourth beat, would he own one beat per measure and some absurd ideas like that?” But it didn’t involve a lot of litigation, a lot of mess over adapting. He was okay to adapt from Bach but public’s was not okay to adapt from him unless publics was adapting from Bach. It was a real complicated mess. The way public domain happens, as I mentioned, is if it’s pre 1923 but there are also some interesting things have happened in the 20th century and that is under the old copyright law, copyright term was different. It used to be 20 years initially as I recall the copyright term and in the 28th year, a songwriter would have to renew the copyright and they could get an extra 56 years. If you did not renew your copyright in the 28th year, it went to the public domain. So suddenly this song you’ve written or the book you’ve written or whatever, it’s no longer yours, it’s gone, it’s in the public domain because you did not renew the copyright registration. Under the old law, you had to register copyrights. To get a copy, it had to be registered republished. Now, under the law we live in, its 1978 law on its automatic. That’s resulted in some interesting things and it’s also had some people look at some works that are under copyright that maybe shouldn’t be under copyright. There’s a famous example that recently lawyers decided that happy birthday, the famous happy birthday song should not be owned by Warner Chapel, it shouldn’t be under their copyright. Most people didn’t understand the history of it and/or didn’t want to delve that far into it. It was written in 1891 and it was a song written by two teachers for their students whose good morning to you, good morning to you, good morning dear children and that was what it was. It was written in 1891 or 1892 but it wasn’t registered the copyright office till 1935 and then it was with the words happy birthday. But there’s a lot of confusion as to what took place in between. It ends up, it’s complicated story but a company owned it and then Warner Chapel owned it, they bought the company about the publishing. Then they were starting to issue licenses and a lot of people would avoid singing happy birthday in public because Warner Chapel could demand so much money and people come up with other versions. So what the lawyers did was to sue on behalf of a plaintiff who was trying to do a documentary about the song happy birthday. She used to work for MTV and she did a video, a series of videos that show MTV had it led to on extravagant birthdays that sweet 16 birthdays or we’re crazy. She wondered well, what’s the history of the song? So, after all that took place she ended up suing with these lawyers and they won and happy birthday is now a public domain. So the same attorneys I’m working with now and we thought that We Shall Overcome had a long history and that should not be owned that we should try to free it from copyright and we proceeded to. We had a look at how did the song come about and even the owners of We Shall Overcome said it’s in the public domain but we added original expression, therefore, we own it. Because remember I said that if you can take public domain and you will own what you add to it. But if you look at it closely like we did, ends up the melody and the music is from the 1780’s. Even Beethoven set it to music in 1815 or so and many other people did and also it required new words and it just kept changing, was handled by many people over many years. What finally happened was that their claim that or they change it from We Will Overcome to We Shall Overcome and deep in my heart became down in my heart and they thought that by making those two simple changes that they should own the whole thing and the courts disagreed and agreed with us and now not only we have is happy birthday in the public domain and free for anyone to use but so is We Shall Overcome. So with respect to Happy Birthday and We Shall Overcome, both of those songs that had been under copyright are now free for everyone to use and they are in the public domain. So when it comes to public domain, it’s extremely important to know with the music words, wherever the expression you’re dealing with is an under copyright or is it not. So it’s copyrighted or it’s public domain. There have been examples where someone thought a song was in the public domain and they used it in another composition only to be sued and to find out like oh, oh that was not public domain is owned by copyright. Sometimes at Christmas you hear Rudolph the Red-Nosed Reindeer and you here all these songs that have been people song for years but Rudolph the Red-Nosed Reindeer, for example, is under copyright. This happens plenty in. So it’s very important to know the importance of the public domain material you can freely use but also to be to really make sure that the work is in the public domain and not under copyright.

One Comment

  • CHARLES JAMES

    I hope you are correct. I think you are. A few years ago a local small town bar owner was forced out of business because he put happy birth day on his karaoke machine. The local musicians union brought in lawyers from ASCAP and sued him out of business. ASCAP made millions out of this fraudulent copyright. Thanks

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