Some Copyright Issues for Dulcimer Players of Music

by Steve Eulberg

May I offer a few musings on a recent conversation that has been seeded and is taking root in my brain?

Like many dulcimer players, I am just giddy when I discover that I can quickly play my favorite Jim Croce or John Denver, or Elton John or Blood Sweat and Tears tunes on the dulcimer I love! And....I get very confused when I am told that I have to respect copyrights when I want to share this music with others.

Copyright Laws were created to protect the intellectual property of people who create things.  As one of those creators, I am grateful for that protection, which, according to the laws, is provided, whether or not the copyright is registered.  However, to defend one's copyright effectively, registration with the Library of Congress is the best help.

Mechanical Licenses have been set up by Congress so that once something is created (e.g. a song is written) no one else can profit from that creation unless the owner of the copyright is compensated at a rate set by Statute, which is why it is called a statutory rate.  As a composer, I am tickled whenever someone requests a Mechanical License to record a piece I have composed.  I believe this is how Carole King probably imagined her career as a song-writer when she rented a studio in NY and began hammering out hits.  (The singer-songwriter model came a bit later.)

This all assumes that the composer of a piece of music is known, and holds the copyright.

Folk music is the music that has weaved its way, or seeped its way into the culture of a people and has been passed on by generations (usually by Oral/Aural transmission) and has survived because it has been embraced by people who learn and sing and play it, continuing the process.  This music is considered to be in the Public Domain.

Piano Sheet Music was the first "mass media" that enabled the distribution of the songwriter's creations and was popular in the 1800s-1920s.  It was pretty clear that the creators (or at least the publishers) of the music were compensated by the sale of the sheet music.  And the way that the music was passed on was by learning to play it.  But there was no way to "capture" a performance--yet.

Radio in the 20th century has played a large role in this transmission process, as David Brose, the Folklorist and Ethnomusicologist at the John C. Campbell School in NC likes to demonstrate.  (A great many of us Boomers learned our "folk" music aurally from the radio, or from LPs.  Shoot, the Rolling Stones learned alot of their early blues music by wearing out both the needles and the LPS of their favorite African American blues artists!)

The first radio was live, but then with the advent of recordings (Wire, 78s, 45s 33-1/3s, Cassette, 8-Track, CD and mp3s) the performance of music could be "captured" and "exploited" almost endlessly.

The Performing Rights Organizations- PROs (ASCAP, BMI, SESAC) were created to protect the rights of and pay the creators of the music that was broadcast on radio.  (Disclosure:  I am a member of BMI and while my checks are not large, I am very grateful when they arrive!)

The Internet has the changed the transmission of recorded music in some never-going-back kind of ways.

File sharing (ripping CDs and sharing the music with one's "friends") turned into the piracy of sites like Napster which sought to give music away to anyone who had an account.  After the closing down of their original site, they have re-opened as a site that does compensate music creators (at a very low rate, but better than many!) for the download or streaming of the music they administer.

Streaming and Download Sites such as iTunes, Amazon.com, Spotify and Pandora are just a few of the services that offer ways to listen to music which also compensate music creators (but at vastly different rates from each other!)

Now there are sync licenses (anytime one's created music is used as a soundtrack to video--like a Youtube collaged of photos, for example.) With the ubiquitous presence of electronic devices (iPods, mp3 players, phones, tablets and computers), there is a hungry appetite for more creative content which is leading to much discussion about both preserving the rights of those who create the music, and provide for their fair and adequate compensation for the use of their creation.

But how does this affect me, as a dulcimer player?

You are free to play any of the music you love, whenever and whereever you wish!  (Well, the middle of the night beside your sleeping partner might NOT be the best choice.)

If you play in a public performance, it is the responsibility of the venue where you are playing to have appropriate licenses in place.

If you wish to record someone else's music which they have released to the public, you need to compensate them in accordance with the Statutory Rate with a Mechanical License, as listed above. This can be done in an agreement directly with the owner of the copyright (often, but not always the composer), or it can be accomplished through an agency like Harry Fox Agency, which administers copyright permissions for the ones they have a relationship with.  This process is fairly clear.

If you wish to publish (in writing) an arrangement you have created of their music, you need to obtain their permission.  There is NO Statutory Rate for this and different people, companies have different rates and requirements.  This process is very murky, and many copyright holders are not familiar with this arrangement (in my experience.)

If something is in the Public Domain, then neither of these sets of permission are required.  

HOWEVER, a great many songs which are assumed to be in the Public Domain are actually protected by a copyright. It is always more difficult to prove that something is NOT claimed under someones copyright, but searching the Harry Fox, BMI and ASCAP databases are a good first step.  

Simply reading or writing "traditional" on a piece of music may not be sufficient.

disclaimer:  The author is not an attorney and can offer no legal advice. The contents of this blog post are from his own research and experience and are offered as guidance.  Your mileage may vary.