Copyright Research: “Derivative Works”

Aloha Dear Readers! I am thick into working on my critical edition project, and trying to figure out things like “who owns the copyright to this composition?” Researching copyright has been one of the major challenges facing anyone wanting to “use” Hawaiian songs–whether on recordings, or in print publication. So I thought I would share some insights along the way.

On the matter of “derivative works,” I had written some remarks in an article about the discovery of sheet music for the song “Kaulana Na Pua” in Library of Congress, with a copyright date of 1895. The principle of “derivative works” is what I was trying to get at, in regards to a mid-1950s copyright claim on the song now held by Criterion Music Corp.

An online search on the request “how to research copyright” led me to a pamphlet published by the U.S. Copyright Office titled “How to Investigate the Copyright Status of a Work.” This pamphlet is numbered “Circular 22,” and scrolling to the very end of the pamphlet, I found the dating at the very bottom of the last (back) page:  “Reviewed 01/2012.”

Here is a direct quotation of what they write about “Derivative Works,” on page 8:

In examining a copy (or a record, disc, or tape) for copyright information, it is important to determine whether that particular version of the work is an original edition of the work or a “new version.” New versions include musical arrangements, adaptations, revised or newly edited editions, translations, dramatizations, abridgments, compilations, and works republished with new matter added. The law provides the derivative works, published or unpublished, are independently copyrightable and that the copyright in such a work does not affect or extend the protection, if any, in the underlying work. Under the 1909 law, courts have also held that the notice of copyright on a derivative work ordinarily need not include the dates or other information pertaining to the earlier works incorporated in it. This principle is specifically preserved in the present copyright law. Thus, if the copy (or the record, disc, or tape) constitutes a derivative version of the work, these points should be kept in mind:

- The date in the copyright notice is not necessarily an indication of when copyright in all the material in the work will expire. Some of the material may already be in the public domain, and some parts of the work may expire sooner than others.

- Even if some of the material in the derivative work is in the public domain and free for use, this does not mean that the “new” material added to it can be used without permission from the owner of copyright in the derivative work. It may be necessary to compare editions to determine what is free to use and what is not.

- Ownership of rights in the material included in a derivative work and in the preexisting work upon which it may be based may differ, and permission obtained from the owners of certain parts of the work may not authorize the use of other parts.

Let me be completely clear here: my reproduction of this section is an instance of fair use. I used only a section, in order to comment on it. Plus I completely identified where I got this information–Circular 22 “How to Investigate the Copyright Status of a Work” published by the U.S. Copyright Office, and reviewed in 2012. I am quoting the exact language from the Circular, in order to explore how the concepts are applied.

With that in mind, let’s look at some points relevant to Hawaiian music.

“Derivative works, published or unpublished, are independently copyrightable.” Let’s say I want to arrange Sol Bright’s song “Sophisticated Hula” for marching band. The song was copyrighted in 1935, which means it is still under copyright. As an arranger, I have to obtain permission from whoever is now administering the rights to the song “Sophisticated Hula,” and permission may be (and in fact is usually) granted on payment of a licensing fee. Once I get proper permission, I am compliant with copyright law, to use this copyrighted song. (In a case like this, a marching band director at Smalltown High School in Smalltown, USA, often skips this step, and just flies “under the radar.” However, a marching band director at a Big 10 university whose football games are televised nationally must obtain proper licensing and clearances, because if Sol Bright’s administrators are watching the football game on TV and catch a glimpse of Big 10 U’s marching band playing the song “Sophisticated Hula,” they could sue Big 10 U for unauthorized use of copyrighted material.)

Now, continuing our  query, let’s say that I want to publish the printed score Big 10 U’s marching band arrangement of “Sophisticated Hula.” I now have to get permission from two entities: 1) Big 10 U’s marching band people, who are legally entitled to copyright their marching band arrangement of “Sophisticated Hula” as a derivative work; and 2) Sol Bright’s administrators, who still own and administer copyright to the underlying song, “Sophisticated Hula.”  Note the third bullet point: “Ownership of rights in the material included in a derivative work and in the preexisting work upon which it may be based may differ, and permission obtained from the owners of certain parts of the work may not authorize the use of other parts.” If I just get permission from Big 10 U to print their arrangement, Sol Bright’s administrators can sue me for unauthorized use of the song itself.

So let’s revisit the revered song “Kaulana Na Pua.” Like I said, published sheet music in Library of Congress contains the copyright notice “C. 1895 by J.S. Libornio.” Leaving aside  the matter of [Mr.] Libornio, the 1895 date tells us two things — 1) that this song was copyrighted in 1895; and 2) anything published in 1895 is already in the public domain. So anyone can use and reproduce the contents of this 1895 sheet music–including its melody. But the song “Kaulana Na Pua” appears in the 1950s with a copyright registered to Criterion Music Corp. dated 1955. The language in Circular 22 tells us ” Under the 1909 law, . . . the notice of copyright on a derivative work ordinarily need not include the dates or other information pertaining to the earlier works incorporated in it.”

And here we come to a thorny tangle in the Hawaiian music situation. Is the 1955 copyright notice a claim of ownership of the original song? Or is it a claim of ownership of a derivative version of the original song? This is the very situation that has led to many misunderstandings of people who published songs and registered copyrights in their own name–like Charles E. King, Johnny Noble, Sonny Cunha, and others. Did they “steal” the songs from songwriters? Did they actually pay songwriters a one-time fee to use the songs? What the “derivative works” provision tells us is that each of those gentlemen were entitled to copyright new arrangements of songs written by others, and that they weren’t required at that time to identify information “pertaining to the earlier works incorporated into it.”

Messy, yeah? Just wait until I can figure out “public domain.” This is the concept that covers the expiration of copyright in works, and determines which works can now be used freely because the copyright has expired. That gets even messier, because it depends on the country where copyright was filed, the date of original publication, and protections offered under current law. Is Henry Berger’s 1884 claim of copyright for his arrangement of Aloha Oe now in the public domain? Yes. Is the Hui Hanai’s claim for copyright of the arrangement of Aloha Oe in the public domain? No. But the song itself is in the public domain.

My head hurts. How’s about you folks, Dear Readers?

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Hawaiian Music and Hula Bibliography is moving here!

For years now I have been compiling a running bibliography of publications about Hawaiian music and hula. (A bibliography is simply a list of what has been published, but lists are extremely valuable for identifying the existence of resources and information.) You can still visit it here:

Hawaiian Music and Hula: Bibliography of Printed Sources

Lists of books and articles written about Hawaiian music and hula. Maintained and updated sporadically. But hey, maintained and updated!! This project began as updates to the bibliography on Hawaiian music published in the 1979 edition of Hawaiian Music and Musicians: An Illustrated History (edited by George Kanahele), and the bibliography of hula published in the 1982 book The Hula by Jerry Hopkins (bibliography by yours truly).

The site was made possible by a resource named Sitemaker hosted by University of Michigan. Well, UM has finally announced that it will be retiring Sitemaker.

So, . . .  the contents of the Bibliography will be migrated to this site. Over the coming weeks (and maybe months), I will be moving and “remodeling” the Bibliography. It will be a “static page” accessible from the menu bar just under the title banner–its “Bibliographies” link is already up there!

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Happy Summer, Dear Readers!

June 1. 2014 is almost half gone. The summer solstice is officially another 3 weeks away, but our academic year is over. Nā Hōkū Hanohano awards are past; props to Best New Artist Kamaka Kukona, whose CD Hanu ʻAʻala was the focus of a post here several months back. And the Hawaiian music community is still reeling from the major loss of two giants, Uncle Dennis Kamakahi and Chino Montero.

Iʻve been abroad on my annual end-of-academic-year detox vacation, and am finally getting underway on the summer writing.

2014-05-03

My goal for the summer is to make substantial progress on the book project Hawaiian Songs Ancient and Modern. Iʻve been chipping at it for nearly 30 years. Can you imagine? Yes, life happens . . . but in this case, I have been extraordinarily fortunate to have senior colleagues who believe in the project, and have supported and encouraged me, and have shared their amazement as the project has taken shape.

The project is unprecedented, in terms of Hawaiian music scholarship, and also in terms of musicological theory and method. In my insistence to consider Hawaiian music holistically, many preconceptions have been blasted through–including the very starting premise, back in 1987, that Hawaiian music is even worthy of serious scholarly attention. I knew that, and so did many of my teachers; but it was an uphill battle to have it accepted in the hallowed halls of scholarship that were fiercely guarded by conservative scholars who found the stereotypes unworthy of any attention.

As life overwhelmed me from time to time, my project was endangered by up-and-coming young scholars who latched onto more popular cultural studies driven by oh-so-sexy critical theory (Michel Foucault, etc) and then by gee-whiz postcolonial theory (James Clifford, Gayatri Spivak, etc). And yet I continued to chip away at a project that had all the appearances of a Model T stuck on the supersonic Autobahn. Slowly, steadily, and with the unqualified encouragement of my esteemed senior colleague, Rich Crawford, who is the Executive Director of the series that Hawaiian Songs Ancient and Modern is slated to be published in–Music of the United States of America.

Iʻve been incredibly blessed with the fact that, from the very beginning, Rich “got it.” I credit a lot of that to the fact that, in his own career, Rich has walked very similar paths to mine. Oh, not with Hawaiian music; but with the musics that he was studying, he blazed trails and struggled upstream against naysayers and cultural gatekeepers. His efforts have made the path easier for me. More importantly, his understanding of the scale of the projects he has completed  have bought me the time to really get to know the sources I work with, both comprehensively and intimately, and to really think–hard–about how to tell the stories that the sources bring to light.

The book offers an examination of the sources for 50 selected songs. By sources I am thinking most broadly in terms of “visual representations” that includes notated musical scores, but also appearances of mele texts and song lyrics in printed and unpublished manuscript sources, and also transcriptions of performances registered in audio sound recordings, film, and video over the decades.

Stay tuned, dear readers. Iʻll be sharing my journey on the project, in the weeks and months to come.

 

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Na Hoku Hanohano 101 by Keola Donaghy

Dr. Keola Donaghy served on the Board of the Hawaii Academy of Recording Arts. He offers valuable advice about the awards process for the Na Hoku Hanohano awards.

Part 1:  Educating Yourself

Part 2:  Eligibility

 

 

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on my mind . . .

I stand corrected. According to Lynn Piccoli as well as Auntie Mariaʻs comment,

There are 2 other companies in Hawai`i which still distribute Hawaiian music, and both are located on O`ahu. Pacific Hawaiian (Waipahu) and Music Craft (Aiea).

So there are three distributors of Hawaiian music on Oʻahu. But with the demise of Aloha Music International, the number of artists outside established distribution networks has grown.

Which also leads to a certain level of frustration for customers who want to buy Hawaiian music recordings.

Retail venues for Hawaiian Music on Oʻahu include Barnes & Noble at Ala Moana, Target stores, Native Books, Hungry Ear Records, Harryʻs Music Store. On the neighboring islands, retail outlets include Basically Books in Hilo, Paradise Music on Kauaʻi, and Request Music on Maui. There are more independent retailers throughout Hawaiʻi who carry Hawaiian music, and it would be valuable to have a directory. Wouldnʻt that be a natural project for the Hawaiʻi Academy of Recording Arts (HARA) to develop and maintain?

Online retail sources include mele.com, mkaloha.com, Amazon.com, the iTunes Store, I suppose Google Play is in play (?), and CDBaby. Are there other online sources that Hawaiian music fans should be following?

Artistsʻ websites 

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on my mind . . .

With the demise of Aloha Music International, the Mountain Apple Co. remains the only distributor of Hawaiian music CDs in Hawaiʻi. It is a dismal prospect that, over the past few days, not a single copy of Cyril Pahinuiʻs new CD has been sighted on sale in the only Barnes & Noble left on Oʻahu, or at Native Books Hawaiʻi.

Pehea la?

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Hula Kuʻi Songs: A Playlist

Back in 2010, I posted the listening assignments for my class “Music of Hawaiʻi.” It was a list of song titles, artists and album titles, leaving it up to the listener to look up the recordings. Now in this age of YouTube, Vevo and other great resources, here is an updated listening list of stellar examples of hula kuʻi songs.

The term “hula kuʻi” was introduced in the late 19th century to distinguish the innovative “modern” hula that combined old and new elements. Along with this new hula was a particular poetic format:

  1. standardized line lengths (usually 4 accented syllabled);
  2. lines arranged in verses of usually two lines, but verses of 4 lines were also used;
  3. a formulaic poetic signal at the conclusion, in its most common form–“Haʻina ʻia mai ana ka puana;” but also phrases like “Hea aku mākou e ō mai ʻoe” or “E ō e ka nani mae ʻole.”
  4. Mele in this poetic format were set to a tune that fit one verse, and all verses would be sung to the same tune.
  5. In performance, verses are often separated by a brief instrumental interlude. Some dancers call it “the vamp” or “kaholo” (after the kaholo step); some musicians call this a “turnaround.”
  6. Hula kuʻi songs are accompanied by ʻukulele and guitar; they are also called “modern” hula songs, or “modern Hawaiian music,” in contrasted to ancient chanted hula kahiko. (Note that while all hula kuʻi songs are “modern” in contrast to ancient hula, not all “modern” songs are hula kuʻi songs. The vast majority of English-language hapa haole songs are not identical in format to hula kuʻi songs.)

These videos are drawn from Hawaiian Airlinesʻ Pau Hana Fridays series, which are recorded live and generously shared on YouTube.

First up, the group “Maunalua” sings Aunty Edith Kanakaʻoleʻs beloved song “Ka Uluwehi o Ke Kai,” and noted designer (and Aunty Edithʻs son-in-law) Sig Zane is called forward to hula.

http://www.youtube.com/watch?v=3P80EX8loAA

Next up is falsetto singer Mark Yamanaka, singing “ʻAlekoki.”

http://www.youtube.com/watch?v=JFMt7xxKNOY

And showing the performative possibilities of the repetitive hula kuʻi song format, here is an entertaining version of having fun, and taking up  instrumental opportunities in the repeats of the tune. This is Manaʻo Company, featuring Hawaiian Airlines employee Kaulana Pakele. Enjoy!

http://youtu.be/4q43RVHSn80

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Take 5: Hawaiian War Chant

Not your grandmaʻs Hawaiian War Chant. Not mine, either. But theyʻre out there.

A search on YouTube on “Hawaiian War Chant” will yield entire playlists of the song in various historical and contemporary performances. The vast majority are mainland-produced recordings and/or performances; in other words, these tracks are full of what other people imagine Hawaiʻi and the “Hawaiian War Chant” to be.

The Stereotypes

Here is Tommy Dorsey and his Orchestra. This is the opening production of the 1940 film Ship Ahoy, starring Eleanor Powell. Interestingly she makes her entrance near the end of the.

http://youtu.be/QrPlSRvNhPU

Spike Jones and His City Slickers. Two takes of the song were released in 1945 and 1946. The entire troupe was the headlining act at the 49th State Fair in 1951 (named such at a time when optimism ran high that Hawaiʻi would be admitted to the United States as the 49th State). appeared aiian War Chant.” Their arrival at the Honolulu Airport was covered by the Honolulu Advertiser in a front-page story on May 2, 1951.  There is no mention of whether “Hawaiian War Chant” was performed to Hawaiʻi audiences.

http://www.youtube.com/watch?v=guYiWts0SRc&list=PL72888CAC773986C7

The Muppets!!

http://youtu.be/aTU7nahUw20

Disneylandʻs Enchanted Tiki Room attraction anchored the parkʻs Adventureland area. Opened in 1963, it was the first attraction to feature the newly developed Audio-Animatronics technology. From Wikipedia:  “The presentation features a “cast” of over 150 talking, singing and dancing birds, flowers, the aforementioned magic fountain, tiki drummers and tiki totem poles that perform the attraction’s signature tunes, “The Tiki Tiki Tiki Room” by the Sherman Brothers and “Let’s All Sing Like the Birdies Sing“. The finale has every Audio-Animatronics figure performing a rousing version of “Hawaiian War Chant“.” The closing of the attraction raised an outcry from fans, and it has since reappeared. This clip is from the 50th anniversary celebration in 2013. 

http://youtu.be/VVl9YkZNuUA

The Lion King (Walt Disney Productions, 1994). A 16-second clip that uses plot-related lyrics. This clip was posted by YouTube user “Cornbugles,” and is a compilation of the one-verse-and-chorus song in 16 languages:  1) Arabic, 2) Brazilian Portugese, 3) Czech, 4) Danish, 5) Dutch, 6) English, 7) Finnish, 8) French, 9) German, 10) Hebrew, 11) Italian, 12) Mexican Spanish, 13) Norwegian, 14) Polish, 15) Portugese, 16) Swedish.

http://youtu.be/FNA5JSdpsao

Talking back to stereotypes

What goes around, comes around: after decades of living down the stereotypes, Hawaiians are confronting them head-on. Here is the San Francisco-based professional hula company, Nā Lei Hulu I Ka Wekiu, in a rehearsal for their 2013 show.

http://youtu.be/f3ggPtGB4ec

After poking around YouTube for awhile tracking “Hawaiian War Chant,” and passing dozens of posts of Tommy Dorsey, Spike Jones, the Muppets, Disneylandʻs Enchanted Tiki Room, and the Michigan Marching Band (!), I found this on page 9 of my search results. Somebody finally did something interesting with a recording of the song that is not insensitively “yuk-yuk.” Teresa Bright sings the actual lyrics.

http://youtu.be/pvyLczsLEQ8 

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Take 5: Hawaiian War Chant / Kāua i ka Huahua’i

Actually 1 Take today. But more to follow.

Here are several facts.

  1. “Kāua i ka Huahua’i” is understood to be a love song by Prince William Pitt Leleiohoku.
  2. The earliest known printed version of the songʻs lyrics is in the book Ka Buke Mele o Na Himeni Hawaii, compiled by Edward C. Holstein and published by the Hawaiian News Co. in 1897. [This volume was reprinted in facsimile by Bishop Museum Press in 2003.]
  3. The earliest known printed sheet music notation is by Bergstrom Music Co. in Honolulu. The copyright date on the sheet is 1903.
  4. The earliest identified sound recording at this writing is by the William Ellis Glee Club, on the Victor Records label, and dated 1904. I have not heard this recording, and queries to record collectors so far have been fruitless.
  5. The earliest recording of this song that I have heard dates from 1913, by the Hawaiian Quintette. Walter Kolomoku is identified as the vocalist. Released on Victor Records (65339), the recording is now accessible on the Library of Congressʻ National Jukebox. Here is a link:
Screen Shot 2014-01-11 at 9.24.39 PM

The National Jukebox at http://www.loc.gov/jukebox

http://www.loc.gov/jukebox/recordings/detail/id/3241

Note three observations:

  1. The tempo is not wedding-march slow. It is uptempo.
  2. The verses and the chorus share the same melody.
  3. The “Auē kāua” [or "Auē ta-ha-u-a-la"] refrain is not present. That gets added when the song is repackaged as “Hawaiian War Chant.”

There is another recording, from 1916, featuring a duet by Horace Wright and Rene Deitrich. Aside from the fact that their names do not sound Hawaiian, I donʻt know anything about these singers. But interestingly they also recorded songs like “Pua Mohala” and “Lei Aloha” with Hawaiian-sounding pronunciation (albeit without ʻokina-s). “Kāua i ka Huahua’i” is the first song in a medley of three songs. They only sing the first verse. The ʻukulele strumming is at the same tempo as what follows: “My Hawaiian Maid.” “My Honolulu Tom Boy,” and a repeat of the first verse of “Kāua i ka Huahua’i.”

Listen here:  http://www.loc.gov/jukebox/recordings/detail/id/5189

Many people presume that Palani Vaughanʻs 1970 recording of the song as a slow ballad represents the “original” conception of the song. These two recordings from The National Jukebox from 1913 and 1916 testify to an uptempo singing of the song.

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What Iʻm Listening To: Kamaka Kukona, Hanu ʻAʻala

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From the liner notes:  “Hanu, to inhale and breathe in the essence of life. ʻAʻala, a sweet fragrance that captivates the senses. . . . Hanu ʻAʻala, a solo debut recording effort.”

Kumu Hula Kamaka Kukonaʻs debut album is abundant with fragrances sweet, intense, and even overwhelming. The vocal command on “Hole Waimea” caught my ear immediately; the bouncy liveliness on “Eō hana” had me reaching for the liner notes so that I could track this experience closely. And I found myself rewarded with an exquisite sonic palette that continues to draw me back to the album, again and again.

The voice–a resonant, tenor-range, chanting and singing voice, a valued asset for a kumu hula. Through the magic of the recording process, Kamaka does all the harmonizing.

The songs–among the 11 tracks, four Hawaiian-language compositions that establish Kamakaʻs star in the firmament of hake mele; two English songs (one of which Kamaka wrote); a country ballad paired with a monarchy-era waltz song; four chants; four mele that extols Kamakaʻs Maui home.

The palette–an intuitively divined sense of surrounding the voice with the touches needed on a song-by-song basis. Namely: Casey Olsenʻs solid steel guitar fills on “Eō Hana” and “Honomuni;” pedal steel guitar work by Denny Hemingson on “You Look So Good in Love;” Kapono Naʻiliʻiliʻs subtle rhythmic touches on “Here for Today;” Iwalani Apo’s elegantly understated piano accompaniment on “Waikā;” and Dave Tucciaroneʻs sparkling piano countermelody on “Puanani Aʻo Hawaiʻi.” Thank goodness for liner notes; may they never disappear. The credits are indispensable for appreciating the diversity of the sonic palette over the album.

The mele: what an absolute pleasure to hear witty, well-crafted ʻōlelo, to hear the ‘olelo fit the melodies so perfectly,  to hear the ʻōlelo simply flow off the tongue. The four original compositions by Kamaka are “Eō Hana” (track 3), “The Bullet Train Song” (track 5), “No Uka Ke Aloha” (track 6), and “Hanohano ʻo Maui” (track 12). The title track, “Hanu ʻAʻala,” is an original gifted to Kamaka by haku mele Puakea Nogelmeier. “Eō Hana” will be in rotation on my playlist for awhile. Itʻs a party song, with upbeat guitar and ʻukulele strumming, tongue-twisting lines in which ʻokina fall in exactly the right places (try “Noenoe kuʻu kapaʻahu ʻohu i ka pali” and “O ʻena kuʻu liʻa nou e Kahaʻi” five times, fast), and complete attitude in rendering ” ʻO Hana i ka malie, ʻo Hana i ka ua noenoe” as ” ʻo Hana i sa malie, ʻo Hana i sa ua noenoe.” Par-tay!

“The Bullet Train Song (Liko Pua Hau)”–a mele inspired by travels in Japan, and for Kamakaʻs “hanu liko sakura blossom” students there. The mele itself is entirely in Hawaiian, although “bullet train” and “Takada” are left untranslated, and “pua hau” finally transforms at the end into “pua sakura.”  The melody, arrangement and accompaniment all contain insightful nods to some of the conventions of Japanese enka and obon. Props to producers Kamakoa Lindsey-Asing and Dave Tucciarone.

The most intriguing track for me is “Puanani aʻo Hawaiʻi,” a mele inoa honoring Liliʻuokalani and composed by Malia Craver for the Queen Liliʻuokalani Childrenʻs Hula Competition. Although patterned in the mele format of a hula kuʻi, Kamaka eschews the conventional use of ipu in favor of the greater antiquity and sacredness of the pahu and pūniu drums with its distinct rhythms. In this context, Dave Tucciaroneʻs evocative piano countermelodies ground this track in the living present. E ola nā pua!

The narrative arcs: There are multiple stories that I read embedded in the sequencing of the tracks across the entire album. There are songs about meaningful relationships, gentle notes underscoring the importance of making and valuing connections, but of also letting go of relationships. There are songs of affection for Maui–Kamakaʻs birthplace as well as current home. There are mele meaningful to Kamakaʻs hālau–songs for them, as well as mele presented publicly by the hālau. And yet the album begins and ends with the chanterʻs voice. A he leo wale no. It is the voice that carries the stories, the mele, the aloha. Sonic fragrance. Hanu ʻaʻala.

Mmm.

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