Newly Discovered Jazz Archive in a Copyright Tangle Reply

You might have heard that an archive of historic jazz recordings was discovered and donated to the National Jazz Museum in Harlem last year. Accompanying the hundreds of donated discs containing recordings of legendary jazz musicians of the late 30’s and 40’s… is a tangle of legal copyright issues.

THE MUSIC – This newly discovered jazz archive exists due to the technical genius of William Savory who was both a jazz aficionado and a technical wizard. Mr. Savory developed ways to make superior, longer and more durable sound recordings and recorded historic jazz performances during the golden era of American Jazz. Among the treasures in his collection are never released recordings of: Benny Goodman, Billie Holiday, Count Basie, Bobby Hackett, Ella Fitzgerald, Louis Armstrong, Coleman Hawkins and Lester Young.

This historic collection is currently being restored and digitized by the National Jazz Museum and can be heard in eight short clips on the museum’s website and by making an appointment to visit the museum’s listening room. (http://www.jazzmuseuminharlem.org/savory/index.php or by calling 212-348-8300).

THE BIG QUESTION – is whether this historic collection will be made available to the public once digitized.

COPYRIGHT ISSUES ABOUND – Copyright law has changed and morphed over the years and the legal protocol for using, distributing, copying and making these digitized recordings (or any copyright protected work) available… requires identifying the musicians and copyright owners of the recordings and getting their permission to use the works. As you might guess, this is no small task. It can be difficult to identify and locate copyright owners especially since decades have passed since the recordings were made. Most of the musicians are no longer living and the business entities and companies that may hold ownership interests in the works have likely morphed and changed too.  (Note that copyright protection lasts for longer than the life of the owner.  The duration of copyright protection has changed over the years.  Currently, copyright protection lasts for the life of the author + 70 years and if owned by a corporation it lasts for 95 years from publication.)  If an organization wishes to use copyrighted works, but the copyright owner cannot be located… the organization has two choices: 1) not to use the work or 2) to use the work without permission, which is a risky gamble.

HOW BIG OF A GAMBLE IS IT TO USE A COPYRIGHTED WORK WITHOUT PERMISSION? The short answer – Big. Using a copyrighted work without permission can put the user at risk of owing treble damages to the owner for willful infringement AND can prevent any further use of the work via an injunction. The risk of potential copyright liability for using works without permission is generally too high for most museums, filmmakers and libraries to take.

WHAT HAPPENS NOW? Evidently the National Jazz Museum in Harlem is in the process of restoring and digitizing the Savory collection. It will be interesting to see how the museum decides to use the works. Hopefully, tracking down the copyright owners and getting permission to use (and make available for distribution) at least some of the works will be possible. (I would like to hear these recordings!) Alternatively, legislation could change the penalty for using the works by reducing the fee from treble damages to ‘a reasonable licensing fee’ payable to the copyright owner retroactively once they resurface and make a demand for payment. These types of legislative changes to the current Copyright Law have been proposed but have not been adopted. For now, making an appointment to visit the National Jazz Museum in Harlem’s listening room is the way to hear these historic jazz recordings.

See also: http://www.jazzmuseuminharlem.org/; http://jazzmuseuminharlem.org/the-museum/collections/the-savory-collection/; http://www.copyright.gov/; Orphaned Treasures: A Trove of Historic Jazz Recordings has Found a Home in Harlem, But You Can’t Hear Them, by S. SeidenbergFor more information on works in the Public Domain, see http://wp.me/p10nNq-ft and http://wp.me/p10nNq-gn; @iplegalfreebies and www.kasterlegal.com.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

 

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