The most insane bit of U.S. copyright law?

I knew about many insanities in U.S. copyright law, but I just came across something that is so absurd and unjust it makes me queasy.

My dad is a professional musician; he plays blues and jazz and original piano music, and has made five records. For professional musicians outside of pop music (and often in pop as well), copyright law is already simply a burden to the point that it is almost universally ignored. Gigging blues and jazz musicians have long used “fake books“, unauthorized charts of the melodies, lyrics and chord structure of jazz standards. No one is worried about other musicians infringing on their copyrights, because jazz and blues (among other genres) are rooted in a culture of borrowing and adaptation. It’s inimical to creativity to draw sharp lines between what can and can’t be borrowed or adapted, and indeed in academic jazz programs one learns to improvise by practicing the great “licks” on classic recordings.

But my dad, being the upright citizen that he is, has stuck with original compositions and reinterpretations of public domain classics on his albums. One classic he put on a 2004 album is “Love in Vain Blues”, a Robert Johnson tune that was first recorded in 1937. Johnson died in 1938, and the original recording was published on vinyl phonograph in 1938 or 1939 (without a copyright notice) and not renewed after the then-standard 28-year copyright term had ended.

But as the result of a series of utterly insane laws and court decisions, it turns out that the song may be under copyright through 2047. Today, issuing as sound recording is considered publication. But according to the 2000 decision in ABKCO v. LaVere, sound recordings published before 1978 don’t count as publication. So despite the publication, re-publication, and widespread adaptation of Johnson’s “Love in Vain”, it was never “published” before 1978 because there was no sheet music. And because it was created earlier but “published” first between 1978 and 1989, the crazy rules go into effect. (ABKCO is the record label for which The Rolling Stones recorded some Robert Johnson songs; LaVere is the man who in 1974 tracked down Johnson’s surviving heir and made a deal to pursue royalties for Johnson’s music in exchange for half the takings.)

Here’s a great article on the Robert Johnson copyrights: “Borrowing the Blues: Copyright and the Contexts of Robert Johnson“, by Olufunmilayo Arewa.


Here’s another excellent article, arguing “that ABKCO, as well as the 1997 amendment to the Copyright Act that precipitated ABKCO, are legal anomalies that frustrate the intent of the Constitution.”

I just talked to my dad about it. He says “bring it on”. You can hear his version of “Love in Vain” at thesixtone, and on Wikipedia as soon as I transcode it. It’s pretty clear to anyone who a) knows how blues works, and b) knows anything about Robert Johnson and the lack of documentation about whether he even composed any particular song attributed to him, that there’s no basis for copyright claims on this stuff.

51 thoughts on “The most insane bit of U.S. copyright law?”

  1. So when is the uprising scheduled? This sounds like pretty ridiculous red tape.

  2. "…because it was created earlier but 'published' first between 1978 and 1989, the crazy [copyright] rules go into effect."

    No, that song went into the public domain, so anyone can publish it, but no one can have a valid copyright on it if they do publish it.

    If the first person to "publish" it puts a copyright notice on it, that doesn't make their copyright claim a valid one. Once something is in the public domain, it can't revert to private ownership. Though someone trying to enforce a fraudulent copyright may convince someone to pay royalties, they have no legal right to force them to pay.

  3. John, of course that's how it ought to work. But the ABKCO v. LaVere case says otherwise.

    The court held that, while performances of the song were published (and may have fallen into the public domain), the composition itself had not been technically published. The composition was then first "published" in the 1970s by someone claiming to own the copyright. That's the same kind of rules as for, e.g., an unpublished manuscript that gets passed down for a few generations without being published: copyright term starts when it gets published, not when it gets first written.

    I'd like to think that the idea that a music recording doesn't count as publication of the underlying composition wouldn't stand up if it went to the Supreme Court, but if the ABKCO decision could go so badly in a circuit court…

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