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