While the main interest of the founder of this site is folk music, this all applies to any folk art with a tangible result which is subject to copyright.
Folk music has been outlawed in the United States since 1978. Well, let me rephrase that. The folk process—the handing down of songs and stories from generation to generation, with changes and mutations over time—has been outlawed since 1978. Don’t get me wrong: there’s not a specific law against folk music now. It’s just that the route by which something becomes a folk song (or folk tale, or any kind of folk art, really) disappeared in 1978, and until recently there wasn’t a legal framework for trying to get that back.
I’m not being hyperbolic. The law changed, and it changed in a way that fundamentally altered the way people can make and participate in a common culture. “Folk Music”, the commercial genre, is doing just fine. But folk music—songs that you sing half-remembered because you heard your grandmother sing them when you were young, or that fiddle tune you’ve played ever since you heard a traveling musician play it at a house concert you went to years ago—has been legislated pretty much out of existence.1
If you are a musician who played folk or traditional music in the US before 1978, you might not know there’s a problem. And if you were born in the US after 1976, you’ve never lived in a world where it was otherwise, so you might not know what you’re missing. My goal here is, first, to convince you that if you are a folk musician there is a problem you might not be aware of, and second, to let you know that there is something you can do to help.
I can only talk about the situation in the United States, since that’s the only country whose laws I’ve done any research on.2 The situation is similar in other countries; I just don’t know the specifics. I am not a lawyer; none of this is legal advice. You know the drill.
Prior to 1978, copyright was opt-in. That is, if you wanted to assert your copyright over a song you’d written, you had to publish it with a copyright notice. If you published it without a copyright notice, your song was in the public domain, which means that anyone else could sing it, record it, change the lyrics or melody to their liking, use it however they wanted, without having to pay you as its creator.3 And the public domain is where folk art happens. Plenty of art happens outside of the public domain, too; it seems like there’s a new Spider-Man movie every few years and there are hundreds, if not thousands of licensed covers of just about every Beatles song. But I wouldn’t call that folk art.
You can write new stories, sing new songs, make new movies about Frankenstein’s monster because Frankenstein; or the Modern Prometheus is in the public domain. You can even publish and sell your own edition of the book if you want, or rewrite just the ending and publish it under the same title if you think you can do better. If something is in the public domain, anyone can legally do anything they want with it.4 Spider-Man, on the other hand, is not in the public domain. If you make and sell your own movie involving that character, Disney is within their rights to sue you into a smoking hole in the ground if you haven’t negotiated a license with them first.5
What does this mean for music? Generally speaking, it means that anything published after 1925 is dangerous to use, because someone probably thinks they own it and are entitled to money from you if you use it. Don’t think that applies to traditional or folk music? Think again: any traditional songs or tunes that were recorded in the early days of the recording industry (or since, for that matter) probably have copyright registrations based on those recordings. Someone owns those copyrights, and if they think you’re infringing on them, do you really want to pay for the court fight to establish that you’re playing a version that predates the arrangement that they’re claiming copyright in, or that their copyright was invalid to begin with?6
What does that have to do with 1978, though; what changed? The Copyright Act of 1976 went into effect on January 1, 1978; it forms the basis of copyright law in the US today. And it changed the requirements for registration—previously a work had to be registered in order to enjoy copyright protection. If a folk singer wanted to make a song they wrote available to everyone to sing, they could do so simply by publishing it without a copyright notice, or by publishing it with a notice dedicating it to the public domain.7 If you as a folk singer could show that a song was published without being registered or otherwise complying with the required formalities, then you could still be sued for using it, but at least you’d have an easy defense. As of 1978, though, everything is automatically protected without the creator having to do anything8 . And the 1976 Act doesn’t provide a way to abandon your rights. You have them whether you want them or not, and even if you never exercise them, your heirs might.9
All this is to say: if you play traditional music, you are building on a body of work which was largely created in a legal environment very different than today’s. If you compose music in a traditional style, unless you are one of the few who are aware of the legal changes between then and now, you are not contributing back to the commons that you benefit from. Even if you personally would never set lawyers on a fellow folk singer playing your song at one of their concerts, you won’t live forever, and you have no say over what your heirs do with the songs you wrote.
A Possible Solution
Creative Commons licenses allow you to license your creations under a number of scenarios.
If you would like to, as much as possible, treat your work like someone publishing their creative output before 1978 without a copyright notice, you can publish your work under a CC0 “No Rights Reserved” license.
If you would like to let people play and adapt your music without restriction, as long as they credit you, there’s the CC-BY “Attribution” license. If the same terms should apply to whatever they create using your music, there’s the CC-BY-SA “Share Alike” license.
All of these licenses are what they refer to as “Free Culture Licenses”, meaning that they support an open culture of sharing rather than a restrictive culture of ownership. Depending on how committed to contributing to a shared culture you are, you might choose one of these licenses, and I encourage everyone writing what they think of as “folk music” to consider doing so. (Nothing about releasing your music under one of these licenses prevents someone from paying you to use it if they want to, or if they want to use it without releasing it under a similar license themselves when you’ve used the “Share Alike” SA version.)
But if you’re concerned about other people making money off of your work without giving you a cut, there are options. The Creative Commons licenses also have “Non-Commercial” versions which let people share and adapt your work as long as they aren’t doing it primarily for commercial purposes. CC-BY-NC and CC-BY-NC-SA are the non-commercial versions of the ones requiring attribution above.
Unfortunately, there’s no license from Creative Commons which allows people to play your music for money but not to record it without arranging for a license from you. I think that’s what many people in the folk music community think is currently the law—that you can play covers of someone else’s music safely, but need to pay if you’re going to record it. That feels fair and like what the law ought to be, to me. But it’s not, as anyone who’s had to stop hosting live music in their cafe or bar because they couldn’t afford to pay the fees demanded by BMI and ASCAP can tell you.10 11 12 13 14 15
What I’d like to do is create a license which does make that the case. With a CC+ license, you can release your work under one of the Creative Commons licenses and then add on another license which grants rights not covered by the CC terms. I would like to create a Folk Libre add-on license which you could combine with one of the CC non-commercial licenses to allow people to perform your music live in a commercial context (allowing buskers to play your songs and people to sing them at open mics or jam sessions hosted by businesses), while retaining your right to grant mechanical licenses for others to record your work.
Maybe there could be levels, like it’s ok to perform for an audience of under 1,000, to allow for busking and performance at mid-size venues, but additional licensing is required for larger venues and festivals. I don’t know how this would work for artists who are members of a PRO like BMI or ASCAP, either. Can you dual-license your music if you’re a member of one of those?
If you are or know an intellectual property lawyer who would like to help with this (I have a small-ish budget), if you’d like to help hash out what would work in a folk libre performance license, or even if you think I’m totally off base here, please leave a comment below or use this contact form:
- Indigenous folk traditions which involve group rather than personal ownership of stories, songs, and designs have been in this position for much longer, since copyright law has never included provisions for that sort of thing.
- I’m using “research” in the lay sense here; I have not done a rigorous systematic inquiry.
- Anything I say about copyright status as of a certain date is based on the information at copyright.cornell.edu/publicdomain; any inaccuracies are most likely mine, not theirs.
- “Public domain” is a legal term with a specific meaning; it isn’t just a phrase that means “made accessible to the public”. The fact that something is published online does not make it “public domain”.
- As far as I know, the legality of not-for-profit fan fiction has not been tested in court, so there isn’t a reliable answer about what your liability is for writing new stories involving characters owned by someone else and publishing them somewhere like Archive of our Own.
- The lyrics to “Amazing Grace” were written in 1772 and the melody most people associate with it was published at least as far back as the 1840s, but the Harry Fox Agency still has 97 versions of “Amazing Grace” in their database that they’ll happily charge you a licensing fee to use on your recording, and BMI has 2,220 versions in their repertoire they’ll charge you a licensing fee to perform as a “cover song” at your weekly circle sing.
- I don’t actually know any examples of works explicitly dedicated to the public domain before 1978—even Woody Guthrie’s songs were published with copyright notices and a pledge not to enforce his rights, which didn’t stop the entities which acquired his copyrights after his death from charging people to use them.
- I guess the real cutoff date is actually March 1, 1989, since there were provisions for edge cases
- Ludlow Music is still claiming ownership over “This Land is Your Land” despite Woody Guthrie’s encouragement for others to do with it whatever they wanted and a 2004 lawsuit where the EFF turned up evidence that the copyright had actually expired in 1973. Because that case was settled, Ludlow gets to keep claiming they own that copyright, and even the new 2020 decision doesn’t rule on the merits of the case, so they’re free to continue.
- Hill, Cindy Ellen. “BMI Blues: Royalty Fees Stifle Music Venues in Vermont.” VTDigger, July 4, 2012. .
- Kubal, John. “Music on Main, Open Mic Nights Shut Down.” Brookings Register. Accessed December 22, 2020.
- Masnick, Mike. “More People Realizing That ASCAP And BMI Are Killing Local Music Scenes.” Techdirt. Accessed December 22, 2020.
- Phil et al. “BMI / ASCAP Issues.” DjangoBooks Forum. Accessed December 22, 2020.
- Richards, Kathleen. “ASCAP Targets Farmers’ Markets and House Venues.” East Bay Express. Accessed December 22, 2020.
- Vulcan, Nicole. “Displacing the Music.” The Source Weekly – Bend. Accessed December 22, 2020.