BY EDDIE SCHER | FROM THE FALL 2020 ISSUE OF UKULELE
Founding Father and U.S. President James Madison knew how important it was to protect songwriters. That’s why he and his buddies in Philadelphia included the Intellectual Property clause in the U.S. Constitution (Article 1, Section 8, Clause 8) giving Congress the power:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
The idea was to incentivize the creation and sharing of ideas by giving creators control of their intellectual property. Not forever, but for enough time that the creator could reap the rewards of their creation.
Today, the length of that limited monopoly on a song is 95 years after its publication. This is very good news if you’re performing or recording gems like “Won’t You Come Home Bill Bailey” (Hughie Cannon, 1902), “Fascinating Rhythm” (George and Ira Gershwin, 1924) or “Beautiful Dreamer” (Stephen Foster, 1862; see how to play it). The copyright protection for songs published in 1924 expired on January 1, 2020, putting some of the greatest ukulele tunes of all time, such as “Everybody Loves My Baby,” “Nobody’s Sweetheart Now,” and “It Had to Be You” in the public domain. (On January 1, 2021, it will be 1925 songs that lose their protection, and so on.) Once copyrights have expired, you’re free to perform, record, and reuse a song without permission. But what if you’re interested in something a little more recent?
Copyright is a complex area of law—let’s face it, the law is all pretty complicated—so take this overview as general information, not legal advice (which I’m in no position to provide under any circumstances). Another reason copyright for music is particularly complex is that there are different rights involved: composition and mechanical.
The creators of a song own the composition, the melody and lyrics you’d find on sheet music. (On a side note, chord progressions are not protected under copyright law, which explains how so many fundamental chord progressions are used over and over again in songs.) Songwriters also hold the mechanical rights to the song, which ensure that the writers can collect royalties for recorded versions of their song.
So, if you’re going to record a song that is not in the public domain, you need to secure a license from the owner, usually a music publishing company. This is called a mechanical license (in one version of the story anyway), because when Congress passed the 1909 Copyright Act, they were recognizing a new right authors hold for the mechanized use of a piece of music in player piano rolls. That mechanical right evolved with time and changing technology from perforated rolls of paper to cover the analog and then digital sound recording of a song. These are also sometimes called recording rights.
Getting a mechanical license for a song is not difficult these days. A Google search will bring you to online services that will determine how much you owe for the mechanical license for a song, sell you the license, and ensure royalties are paid to the holder of the copyright. Another reason these rights may have been called mechanical is that royalties are not individually negotiated for every use; you simply pay the price for use as set by the Copyright Royalty Board every five years. The cost of that compulsory license is currently 9.1 cents per song per unit sold, meaning that you will pay that much in royalties (plus some additional overhead costs) for each digital download, CD, or album you sell for each song you covered on that recording.
I was amazed the first time I did this and paid (though an online service) the estate of Hudson Whittaker, better known as Tampa Red, for his brilliant “My Baby Said Yes (Instead of Maybe)” from 1935.
Public performances of a copyrighted song also require a license to ensure that the copyright holder is compensated. These performance licenses are generally held by the venue. If it’s a club, coffee shop, bowling alley, or bar that’s playing music, it should already be paying for a license from ASCAP, BMI, SESAC, GMR, or another music licensing organization that distributes royalties from performances of music, live and recorded, to songwriters.
What about your songs? The first thing to know is that you own the copyright simply by creating the song: Your song, you’re done. There are things you can do to protect your copyright. When I was young, I was instructed to make a cassette recording of my tunes and mail it to myself. Then, when I heard my song played illicitly by some huge band on the radio I could go to court and, in a Frank Capra-esque scene, dramatically break the date-marked postal seal, open the envelope, play the tape for the scowling judge, and prove that I was the original creator of the tune and owed millions!
This may still work, but you can also document your song either on paper or as a sound recording and submit it to the U.S. Copyright Office, (copyright.gov). Now, I’m still not your lawyer, but I rely on the fact that getting my songs out there, playing them live, recording them, and posting them online creates a record of my authorship that would also convince the scowling judge and jury.
From the beginning in the 18th Century, copyright protection was always viewed as a necessary, but time-limited, monopoly. The incentive to reward songwriters is balanced with the need to turn intellectual property over to the public at some point. The public domain is a place where songs and movies and all other science and art that have been out-of-print or difficult to find get a second life.
If you are looking for great free music in the public domain, a good place to start is the Public Domain Information Project, which has a clear, easily searchable database. To actually hear specific songs you might be looking for, try searching the Internet Archive, the Library of Congress, or good ol’ YouTube, which has an amazing number of vintage recordings. Using those resources, you can find collections of 78 rpm and cylinder recordings from the very beginning of recorded music in 1898, including some of my favorite ukulele music from the early 1900s, like Art Conrad’s “Say It with a Ukulele,” recorded in 1923 on ukulele with beautiful harmonies by Billy Jones, Ernest Hare, and Harry Reser—stars of their day who will no longer reap the financial rewards of their performance but certainly deserve a second look.