When we talk about issues pertaining to copyright and orphan works here at the Public Knowledge blog, we often rely on hypothetical examples to illustrate the need for reform. For example, in his appeal for a searchable image copyright database yesterday, Alex referenced that familiar image of an artist happening upon a box of old photographs at a yard sale, with no copyright holder in sight. As compelling of a scenario as this is, you've might have found yourself wondering at some point if independent artists are the only ones who run into these sorts of issues. Do more established artists and even corporations sometimes fall victim to the pitfalls of the U.S. copyright system too?
Why yes, yes they do. In a piece in the San Francisco Weekly last week, it was revealed that Matador Records had incorrectly credited a song on Cat Power's recent Jukebox covers album and furthermore, had failed to pay the due royalties to the song's copyright holder. The song in question, “Lord, Help the Poor and Needy,” was incorrectly credited as being a traditional song in the public domain in the album's liner notes. As it turns out, the song was written by deceased Mississippi blues singer Jessie Mae Hemphill and the copyright to the song is owned by her estate. While this story serves to illustrate the need for a copyright system that's easier to navigate for licensees of all kinds of content—be it audio, video, literary or graphical—it also highlights some of the specific challenges that the system poses to musicians and record labels.
“American copyright laws go under the assumption that a work is wholly original in words and melody, or it uses words and melodies from another source that's either under copyright or in the public domain,” Dr. David Evans, a professor at the University of Memphis and Jessie Mae Hemphill's publisher, told the Weekly. “But it's not that simple with some African-American musical traditions.” The Weekly explains further: “[M]any artists of Hemphill's era often borrowed a verse, chorus, or melody from a traditional song as a jumping-off point for their own material.”
And African-American folk music isn't the only genre for which this statement rings true. Contemporary hip-hop, rock and electronic artists often allude to, sample and build upon older works in much the same manner. This being the case, copyright databases should be structured to accommodate certain types of appropriation, which now serve as an integral means of expression in many forms of American music.
However, there are certain forces in the content industry that argue that exceptions should be made to orphan works legislation for the very same reason. Specifically, they believe that this type of appropriation makes it difficult to ascertain the original author of a work and for that reason, incidences involving sampling should be exempt from would-be orphan works laws. While it's true that sampling presents a slightly more complicated case, it's still a case that orphan works legislation will be well equipped to deal with. There is software on the market, for example, Gracenote's MusicID software, that can identify a piece of music based on audio waveforms, regardless of whether the piece is an original work, a sample or even just a snippet. Furthermore, under previously proposed orphan works legislation, once the owner of a sample's copyright is identified, that copyright holder would be compensated, just like anyone else. If the content industry is allowed to pressure lawmakers into exempting samples, it will prevent “audio orphans” from being used as samples and furthermore, could have a cooling effect on orphan works legislation as a whole. And quite frankly, Big Content's argument sounds a whole lot like the same FUD that was spread when sampling first emerged in the early 1980s. Sampling is here to stay folks, it's about time we all got used to it.
Back to the story at hand, it turns out that the dispute between Cat Power and Jessie Mae Hemphill has a happy ending: Matador has since acknowledged its error and, according to label co-founder Chris Lombardi, is now working to establish the proper royalty payment mechanism. Still, you've got to wonder how many other stories like this are out there–and how many of them don't end on such a high note.