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 The law provides the derivative works, published or unpublished, are independently copyrightable and that the copyright in such a work does not affect or extend the protection, if any, in the underlying work.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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2 Responses to Copyright Research: “Derivative Works”

  1. Kihei de Silva says:

    Please keep at it, Amy. This is important stuff for Merrie Monarch participants to consider since the festival now requires (but hasn’t really enforced) songwriter permission for mele performed. Itʻs a rule, but I doubt if the festival or halau have any kind of handle on how to navigate the “thorny tangle” you describe. We sure donʻt. Itʻs especially tough when we attempt to revive obscure mele with clouded provenance; discovering authorship (lyrics, music), determining copyright (if there is/was any), wading through derivatives, and finding someone empowered to authorize our performance can be more daunting than time and resources allow. Our fear is that a rule without guidelines will encourage the MM participants to make easy selections (recently composed mele or mele so old that they are “sure” to be in the public domain) and avoid the beautiful but nearly-forgotten mele of an in-between time.

    • amykstillman says:

      mahalo e ke hoa!! So many misunderstandings, so much knowledge clouded. Where to begin? How to begin? I think many people do not realize, too, that “songwriter’s permission” is not so much a punitive thing, as much as it is an acknowledgement that songs are being used. There have been so many stories of people getting their heads slapped by kupuna when the kupuna were displeased. We need to have more open discussion about that, too, don’t you think?

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