Swallow and La Louisianne are asserting copyright for some of the songs I have posted on my Web site. It doesn't matter whether they are out of print or whether the artists have given me permission.
I am sad for the artists who have given me permission.
They want me to post no more than 30 seconds of any song they own.
It will take a while to re-record these clips, but I hope to do so quickly. I will appreciate your patience.
It doesn't affect everything on my Web site but quite a bit. By the end of the week you can expect to see an announcement of changes on my Web site and a diminished collection of entire songs to hear.
I saw that coming a mile away!
As a copyright attorney, I can see exactly where they're coming from. Any such use without compensation is illegal.
I would, however, try to negotiate an exception in your case based on the use of these songs for "educational purposes". This could appeal to them if you ensure that mp3's can't be transferred or copied (e.g. Quick Time audio).
Best of luck,
I had wondered about it too, but it was good while it lasted, and I really appreciate you making it available to us.
It's not going away! Not entirely, that is.
Neal! Try Nick's suggestion. Your website should be included in Louisiana History 101. Educational?! It's a gold mine of knowledge and history, and a vehicule for debate and discussion. You can't profit one bit from the music, we can't save the files, what's the big problem? I hope you can prevail in this one.
Thanks for the kind words! Actually my site has been included in the syllabus of several college level courses that I know of!
But technically, legally, I don't have a permit to educate
The songs can be saved by the user. Usually you just have to right click your mouse and select a command like Save Target or something like that.
I don't have the technical know how to stream a song, and I don't have the money to put them on a server that can stream. If I am overlooking something technical that anybody here could advise me, I would appreciate your reply.
Thanks, Nick. I was under the impression that an individual such as myself would not qualify as having an educational mission. Wouldn't I have to be a corporation or educational institution to call upon this exception?
FYI, Swallow could see that what my site does is advertise and promote the music as well as educate. That was not the issue for them.
I was a bit surprised that the artist's permission did not matter to the publisher. If you are an artist, you should look at the fine print of your contracts.
Yes, there is a significant burden to prove educational use. You wouldn't qualify as the site stands now.
The reason artist permission is irrelevant is because: (A) While many of the songs are in the public domain, the actual sound recording is almost always owned by the record company, not the artist; (B) Also, publishers and/or record labels often try to acquire a % ownership of the song itself (aka "publishing"). I wouldn't be surprised if either of those companies owned a % of the publishing for many of those songs.
I agree that artists should read the fine print in their recording contracts. Unfortunately, a first-time artist has practically zero leverage when negotiating their agreements. There really aren't that many record labels signing Cajun musicians either.
Many of these artists made very little from record sales. Cleveland Crochet always lamented that he made next to nothing from "Sugar Bee", though you can be sure Eddie Schuler made some coin there (BTW, did you know that he owned the publishing for a certain song called, "Sea of Love"?
You may still be able to negotiate streaming rights with these companies (perhaps for a nominal fee?), but I don't know whether or not it would be worth it for you. Perhaps others who have benefited from your site would be open to contributing...
Nick, without ever having read the statutory provision, i had a layman's impression that illegality was present only if the person allowing access was profiting; my self-revelation occurred with the lawsuits v. kaaza, morpheus, et cet.... How long are the songs bound by copyright law and, in simple terms, what can a person do with a purchased, copyrighted material, e.g., can i burn a copy of my ray abshire cd and give it to you without being in violation?
You can make copies for your personal use, but you cannot make copies for anyone else.
How do I know which songs are in the public domain?
Well...that stinks, but it sure was great having complete songs while it lasted.
I appreciate all the effort you put into the site. I sure learned a lot
Keep The Good Faith
Because of your site, after hearing some of the songs you had posted, I made a lot of purchases from both La Louisianne & Floyds, Ambrose Thibodeaux albums for example.
Because of your site, we have sold a lot of CDs.
I, here in Belgium, never heard of Cory McCauley and his Evangeline Aces before... But after I heard some tracks on your site, I bought a jewel of a CD!!!
So when is your next CD coming out?
People from all over the world can discover rare recordings and hear the recorded history of this great music thanks to this site. And listening to the old musicians’ style of playing is such a pleasure and so interesting ! Thank you for that, Neal.
As for these record companies they probably make their biggest benefits with their current zydeco recordings rather than with the music on your website. They could make a slight financial effort, if any, to let you preserve this part of the culture.
What an eye opener to some history there.... Ive been loooking for such a site for 2+ years..... and it took the shut down to find it?
I cant think many folks would consider it a profit center but how could anyone in any place find this collection via another link? Oh obviously not me.
I suppose I should now ask you all for any sites for "tabs" for one rows ecluding the Gary K site,....that at least I have found...
Cant believe I never saw that site.....
Funny thing is, the site was pretty much an advertisement for the music, with suggested buys to get all the music. Wonder if it would help if we took these comments to those with the copyrights? Think I will anyway.
The companies are within their rights and I do not blame them. Even though my site gave them advertisement, if they wish someday to market individual songs through a service like ITunes, etc., they feel that what I was doing impinged on their commercial interests.
I don't want to start a campaign of letters to these companies. I don't see how that can really help us. It might only get them angry. So if you wish to write to them, please be civil and reasonable. They have legitimate interests here.
If anything, I am crossing my fingers that I do not hear from other companies as well.
Dont worry Neil, any letter I would have written would have been nothing but tactful. Not much good in being confrontational, as you said, they are in their rights. But the thing is, I, and I'm sure others, have bought music because of your website. It made me aware of musicians that I didnt know of before. This makes it a good advertisement.
But if you prefer, I will not send anything.
Sorry, Byran. I meant "you" in a general sense here. I have no doubt that you would be tactful, as you always are a gentleman.
A well-put letter on my behalf can't hurt. I was just worried about hot heads (not you) firing off letters that would only raise the temperature. I spoke with some folks yesterday who were angry, and had to calm them down. Music will inspire passion, and eloquence. See Roger's remarks in this thread. That was a nice note!
Who said anything about the site shutting down? It has not. Take a look at it and you will see that most of the songs are still there in their entirety. These 2 labels accounted for only a percentage of the whole.
I will await word from the labels to see whether I have sufficiently complied with their requests.
Here's an idea. Tell them to make their tracks available as mp3 downloads, with the 30 second snippets on your site as advertisement.
If the cost is reasonable (less than $1, preferably much less), it could be a win-win.
If we can listen to them in their entirety, but not be able to download (like amazon does), much much better, so we can try before we buy.
one of the things we agonized over when we signed with Swallow was this whole idea of "who controls the music". when we signed we realized we were relinquishing the rights to that specific version of the song we put on the cd. i guess the idea of signing on with Swallow was that it would give us the distribution of a large Cajun label. the situation regarding the music on your site makes us see how scary it is to relinquish all rights to the music. we were really happy and proud to have our song on your site, not being able to do anything about keeping the song there makes us sad. our music is "trivial" compared to the likes of the Balfa Bros or Nathan Abshire, but the music is meant to be heard. it makes us really happy to have our music heard.
it's nice to break even on a CD project, but really, we have the luxury of not having to rely on the music for our livlihood. so i understand that the record companies are looking out for "me" (ha) but the music is meant to be heard.
i'll get off my soapbox. i love your site, neal. if there is anything i can do to support you, let me know.
So, are the ones that are still up there going to stay up there?
I've been downloading like a busy beaver over here, then started hitting the ones where the name was no longer a link.
Yes, there are many links still live to songs in their entirety.
I guess I have to wait and see what Swallow and La Lou say. I think I made a good faith effort to comply, but you never know!
I believe many of the songs are public domain. It's not like they don't belong to anybody. They belong to the public. If anybody signed a contract saying they wrote a song, an original, that's one thing. But who can say they wrote and own Chere Mom, Fee Fee Poncheaux, Rabbit Stole the Pumpkin, Kaplan Waltz, and all that?
Stay tuned for developments.
Sorry to hear of the situation. I enjoy being able to access many of these things which are not readily available commercially.
RE public domain...yes, those old "traditional" songs are public domain, but the sound recording by Nathan Abshire, or the Touchets is not. There are two copyrights on the music. One is on the song (tune and lyrics) itself. The second copyright is on the sound recording itself. It is the second copyright (sound recording) that you would be in violation of in regard to old traditional tunes like Fee Fee, Rabbit stole the Pumpkin, etc. Whatever record company made those recordings---they hold copyright on the recording itself, for example Nathan Abshire playing Fee Fee Poncho in 1960 whatever.
In regard to someone else's question regarding buying a CD and burning a copy for a friend--that is a definite violation of copyright, don't do it. For those of us that finance our own projects, it really hurts our ability to do more projects in the future. Most Cajun recordings are lucky to "break even" with recording expenses, replication and duplication expenses, etc. Please don't jeopardize future Cajun recording projects by buying CDs you like and then burning copies for friends. The artists and the culture suffer because of this practice. Most Cajun artists are not in the record business to make money anyway. The music is not highly profitable to begin with. Cajun musicians record primarily to support their culture, to have a recording of their music for their relatively small circle of fans, and to get their music played on the radio. Please support the culture, music, and artists by paying for the recordings.
Determining public domain is tricky. It all depends when the song was written/published. Since the copyright law was changed a few times, there were opportunities along the way to renew one's copyright for an additional term.
For any song written after 1978, the copyright lasts for the life of the author plus 70 years. After that, it's in the public domain. This does not apply to the sound recording, however, which has a different copyright. The record companies are going after you b/c of your violation of their copyright in the sound recording.
It can be difficult to prove that certain songs are in the public domain. Some tunes are clearly traditional even though no specific date can be attributed to it (e.g. "J'ai Passe' Devant ta Porte"). It can also be difficult to pin down when a song was first published.
There are many misconceptions about what constitutes public domain. I once did work on a film and did research on the song, "This Little Light of Mine". It was assumed to have been a traditional spiritual. In reality, it was written by a minister in Oklahoma, Harry Dixon Loes, who subsequently let his copyright interest expire. It was in the public domain, but not for the reasons that most people assumed.
In answer to another person's question, the connection between "profit" from an unauthorized use and illegailty had been continuously eroded, due specifically to new laws concerning internet piracy. One need no longer prove financial motive in the instance of criminal infringement. Thus an unauthorized use of someone else's intellectual property (e.g. copyright) -- regardless of profit motive -- is a violation of the Copyright Act, and therefore, illegal.
The whole debate over burning CD's is nothing new. The recording companies went bonkers over blank cassettes and recording equipment, fearing that they would lose all their revenue. In the end, an extra "tax" was levied on blank cassettes to "compensate" them for any copying. The same holds true for blank CD's today.
I wouldn't necessarily feel bad about copying a Cajun CD to give to my band members to study. I would, however, encourage them to purchase the CD. I look at it this way -- I've accepted burned CD's from friends before, but I make a conscious effort to support artists by buying CD's/mp3's and going to concerts whenever possible. I don't use mass file sharing programs.
The record companies really can't ask for more.
Music copyrights and licensing has been an interest of mine for many years, and I can say that I have never read two legal opinions on the matter that agreed. Every law is subject to interpretation, and I think that too often conflicts of copyright ownership between recording studios and artists has favored the studio. The link I posted above is an interesting read, and also includes a Louisiana court finding.
Copyright law states "that the act of capturing and electronically processing the sounds and compiling and editing them to make the final sound recording "may be enough for a claim of authorship."
If you take this literally, whoever pushes the record button owns the copyright.
If I design something that will enable cars to have zero polution, but I don't have the equipment to build it, does the machinist I hire to build my design have copyright ownership? Only if a written contract expressly states that he will have ownership.
I think that ultimately, if there is no written contract to state ownership, a court would find for the artist unless the studio can prove "an appreciable contribution" to the project.
In Louisiana, more often than not, the artist pays for the recording project. Should the sound engineer or studio have copyrights because they pushed the button?
Chris wrote, published, produced and recorded his own CD at a studio. Chris should be the only person that has the legal right to tell me to take his song off of my site. Can the studio?
Anyway...after all the ranting. A lot of that old stuff probably was done on spec and financed by the studio. They probably do have ownership, but I wouldn't take anything down until they furnish proof of it. I have seen other sites that provide disclaimers. Neal, I got this from a site that you referred me to:
"I will promptly remove any of these materials that are determined to be infringing on the rights of others, upon proper notification. To serve notification you must be either the copyright owner of the work or an individual authorized to act on behalf of the copyright owner. Your notification must include:
1. A physical or electronic signature of the copyright owner or the person authorized to act on behalf of the copyright owner.
2. Identification of the particular copyrighted work or works.
3. Your contact information, including address, telephone number, and email.
4. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner or its agent, or the law.
5.A statement that the information in the notification is accurate, and, under the pains and penalties of perjury, that you are authorized to act on behalf of the copyright owner."
what ganey says, is the real problem.
a site owner can
be threatened by someone, a record
company, who may not in fact
be the owner of a copyright.
yet you, as the site owner,
don;t have any way to verify
whether they are or not.
so if you get any threatening
correspondence, you are forced
to do what they say.
because if you don;t, you could
or not, but there is no way to tell.
the "please furnish proof that you are
the copyright owner" thing sounds
good but it still ultimately doesn;t
work, unless a site owner truly
doesn;t mind getting sued.
I'm so glad I "leeched" the site before all these changes. Of course, if Swallow or La Lou decides to put out compilations of the music I will certainly purchase.
Here is a quote about copyright and sound recordings pre-1972, which represents the vast majority of songs I have ever featured on my Web site. When it refers to common law or state statutes, does this refer to piracy? The term does not seem to apply here.
"NOTE: Sound recordings fixed before February 15, 1972, were generally protected by common law or in some cases by statutes enacted in certain states but were not protected by federal copyright law. In 1971 Congress amended the copyright code to provide copyright protection for sound recordings fixed and first published with the statutory copyright notice on or after February 15, 1972. The 1976 Copyright Act, effective January 1, 1978, provides federal copyright protection for unpublished and published sound recordings fixed on or after February 15, 1972. Any rights or remedies under state law for sound recordings fixed before February 15, 1972, are not annulled or limited by the 1976 Copyright Act until February 15, 2047.
Under the Uruguay Round Agreements Act, effective January 1, 1996, copyright was restored for certain unpublished foreign sound recordings fixed before February 15, 1972, and for certain foreign sound recordings originally published without notice. For further information, request Circular 38b, "Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA)."
If you want to check whether they got the copyright or not you´ll need lawyers, specialized attorneys.
Maybe a crazy idea, anyway:
Many of the big (international) law firms – I was working for an english one a couple of years – do pro bono work and contribute pro bono hours each year. Maybe there is an attorney who is interested in Cajun music……
just my two cents