Jazz and Copyright Law

If you can imagine turning on the radio and hearing a song you wrote credited to someone else, you’re probably a believer in the concept of copyright.

Copyright law, however, has been less than helpful—even deleterious—to both jazz musicians and to the growth of the art form. The reasons for this lie in the philosophical and cultural roots of copyright law and are also a result of the power of corporations to determine how the laws have been written, which in turn strongly influences how the law is interpreted by courts.

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In 1790, the U.S. constitution gave Congress the power to grant copyright—the exclusive right to use and distribute an original work—for a limited period of time. Congress set the copyright term for 14 years, renewable for another 14. At this point, there was no provision to apply copyright to music.

In 1831 Congress decided that musical composition could be copyrighted, but only as printed sheet music. Public performance was ignored until in 1897, when Congress gave copyright owners the right to control public performance of their work.

The 1909 Copyright Act added many details to copyright law, specifying that a copyright holder held rights to the arrangements of their music. And, responding to the rise of the recording industry, it created the compulsory mechanical license and standards for royalty payments, which become foundational factors in American musical copyright law.

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Note that the precepts underlying the creation of these laws were:

1) To provide an incentive to create and disseminate works of social value; and

2) To reward the creators compensation for their work.

As rendered in the real world, these precepts resulted in defining intellectual property from a Western-Eurocentric perspective: in terms of written, musically notated compositions. Jazz is rooted in improvisation and through most of its history, has been largely transmitted in an oral, not a written form.

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The protections of copyright in music are heavily weighted toward song writing and publishing and from the beginning, there has been no legal provision made for the ability to create improvised solos, which the law considers “derivative” material. If the idea of copyright is to incentivize creators, expecting to incentivize jazz musicians by rewarding song writing is a complete misunderstanding of the heart of the music.

Writing original tunes has always been a part of jazz, but proportionally, much less important than utilizing the substantial pre-existing repertoire of music which is the core by which the music is passed from generation to generation. The lengthy body of recorded jazz shows the persistence of these songs and allows us to hear and compare the different ways that jazz musicians have approached playing the same songs over the course of decades.

How many versions of “Body and Soul” or “Royal Garden Blues” are there and how valuable that we can use them to study the evolution of the music? The existence of this body of music also allows jazz to be a truly universal music. One can walk into a jam session anywhere in the world and play “Take the A Train” with musicians who speak no English, whom one has never met.

In its formative years, jazz-makers could rely on local resources-folk songs, marches, quadrilles, blues, anthems, and hymns for its foundational material. This was all in the public domain or, if it was copyrighted, copyrights were held for only 14 years. In the early 1920s, copyrights were extended and this meant that jazz recordings were increasingly subject to paying licensing fees to copyright holders for recordings and public performances. Jazz descended into a dire state during the Depression and this added financial burden didn’t help.

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The recording industry did rebound in the 1930s, but most jazz musicians did not greatly benefit from this turnaround. As my recent article about the A&R Pioneers noted, early recording rights to songs—and to their royalties—were often taken by the A&R men or by the record companies. The 1909 copyright act said that the publication of a sound recording did not publish the musical work, which meant that in order to get the rights to the song, you had to submit a notated copy of the music.

Record companies and A&R men would hire people to make those manuscripts, allowing them to simply pay the musicians per recording and claim all rights to the songs themselves. Here’s what Louis Armstrong had to say: “They used to either buy the tune outright, or ask us if we cared to collect the royalties… Of course you don’t have to make any guesses as to our decisions… Aye?… Sure… Our slogan was ‘A bird in hand gathers no moss.’”

In the same way, Tin Pan Alley publishing houses would sometimes purchase songs outright from songwriters in exchange for exposure of their songs to “hit-makers” like producers, musical directors, and staff vocalists from the commercial radio networks. Or, when jazz musicians did write songs, other people—middle-men and performers—often listed themselves as co-writers, significantly watering down royalty payments. There’s never been much musicians could do about this, given the cost of lawyers and the uncertain result of pursuing legal redress.

In the 1940s, the beboppers did come up with one solution to the problem of having to pay the original composers and to be able to get their own royalties: they wrote new melodies on top of the harmony of standards, which we call “contrafacts.”

Charlie Parker called his take on “How High the Moon” “Ornithology,” while Dizzy renamed the standard “Whispering” “Groovin’ High.” Dizzy Gillespie’s arranger Walter Fuller said: “The first band, we took all of Dizzy’s records, and he and I sat down and wrote them out. My argument was, why give [the labels] the royalties off of ‘Be-bop’ when we don’t control the publishing, and give them everything, and they don’t pay you anyhow. So, let’s write something new, another melody on top of it.”

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While the copyright holder (and their estate) is the one with power, that power can’t be wielded without lawyers and without the Performing Rights Organizations (PROs), which collect performance, sheet music and recording royalties on their behalf. These include the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI) and the Society of European Stage Authors and Composers (SESAC). The organization SoundExchange was created in 2000 to oversee digital rights.

ASCAP, founded in 1914, was truly an exemplar of the old boys’ network. It was almost impossible for an African-American composer to become a member. Long-term members of the “directorate” received higher royalties than newer members whose music was actually more popular. In 1933 a member of the ASCAP directorate received $3,417 for 1,020 performances, whereas Cole Porter was only paid $1,174 for 24,476 performances.

Royalty formulas for all the rights organizations were opaque. It was only in 1941 that ASCAP and BMI entered into consent decrees, allowing the government to regulate them as it would a public utilities commission. Historically, the accounting methods of PROs and record companies have been abominable. Of course, problems with PROs are not limited to jazz. They are simply the delivery system for a legal structure that doesn’t work in the best interests of jazz.

What are other ramifications of having your work be “derivative” in the eyes of the law? For one thing, it means that jazz musicians don’t receive protection from bootleg recordings of their improvised performances. It’s only copyright holders who can sue bootleggers and get compensation.

Also, because improvisations are not considered worthy of copyright protection, neither are transcriptions of solos. If you buy a book of jazz solos, any royalties will go to the original composer of the song, say Rodgers and Hart for “There’s a Small Hotel.” If the solo was from a Charlie Parker original rather than a standard, chances are the copyright are owned by the publisher who released the book of solos, not the Parker Estate.

Jazz Band Clip Art copyright
Bob Neighbor created this image around 1986. It has since escaped into the wild as clip art. The “C” on the drum was added by TST publisher Andy Senior.

Arranging is another way in which copyright law does not serve jazz. Under the Copyright Act, a musical arrangement is also a derivative work that doesn’t qualify for copyright protection. To get that protection requires “the express consent of the copyright owner.”

So, let’s say Coltrane didn’t want others to use his arrangement of “My Favorite Things.” Coltrane would have had to negotiate with Rodgers and Hammerstein, the composers of the original work, for permission before he could bring suit against a party that infringes his arrangement. Such negotiations are expensive and not likely to go anywhere. The lot of arrangers in jazz has always been similar to that of recording musicians: both have been piece workers-paid by the session or by the arrangement.

Jazz musicians’ inability to access copyright protection seems particularly egregious in light of the role jazz has played in rejuvenating moribund songs and raising their profile, giving them a lifespan well past their initial release. In my blog post “Jazz Makes a Standard”, I detail how this happened with the song “All the Things You Are.”

Originally a song in a minor show called Very Warm For May, jazz musicians adopted it and moved it into the center of the repertoire, generating untold royalties for Jerome Kern and Oscar Hammerstein, Jr. Consider that none of the jazz musicians who made that happen got one cent in royalties. When you hear Coltrane’s version of “I Want to Talk About You” in a bar, Coltrane’s estate receives no payment for that public performance; only the estate of Cole Porter.

On the other hand, if you hear a mediocre song being performed by a singer-songwriter, you know they are collecting royalties (at your aesthetic expense). And, an exact cover of a song done by a rank amateur has more rights than the artistic improvisation of an adept jazz musician.

It’s evident that jazz musicians, unlikely to get income from song royalties, must rely heavily on the sale of records. Unfortunately, we are in a digital era in which jazz musicians are collecting fewer royalties on the sale of records, CDs or tapes. Live performances are being replaced by iPods playing the recordings of musicians who aren’t rewarded for those plays. Streaming was initially thought to be a viable source of income, but rates are low and the process of securing and distributing payments is highly complex. To put it mildly, streaming has not proven to be a bonanza for jazz musicians.

Unfortunately, the whole business is going in the wrong direction. Congress has extended copyright terms 11 times in last 40 years, The 1920s musician would have to wait for 56 years before being free to play a song whose copyright was renewed. The late 1970s musician had to increase his wait to 75 years, or life of the author plus 50 years. The 2000s musician has to deal with the term of life of the author plus 70 years, and in case of a work-for-hire-for 95 years from the date of first publication or 125 years from creation, whichever comes first, guaranteeing jazz musicians will be paying licensing fees for the next century.

So, are there any alternatives that can improve the standing of jazz musicians in copyright law? The world of copyright law is awash in legalese. I’ve tried to write in clear language, but I need to trot out some of that legalese to show there are a couple of alternatives being pursued by arts attorneys.

Some make a case that improvisations can be covered under Section 107 of the Fair Use Doctrine. Here’s how one explains it: “Clause three of Section 107 states that if ‘the amount and substantiality of the portion used in relation to the copyrighted work as a whole’ (17 USCA. Sec. 107. 1976) is minimal, the reproduction is not an infringement and can stand as an independent creation. Given the doctrine, jazz improvisation is not derivative and must be prized as an original work of its musician.”

Dizzy gillespie 1940s 52nd st
Portrait of Dizzy Gillespie, 52nd Street, New York, N.Y., between 1946 and 1948. (This work is from the William P. Gottlieb collection at the Library of Congress. In accordance with the wishes of William Gottlieb, the thousands of photographs in this collection entered into the public domain on February 16, 2010. By doing so he made illustrating this paper possible!)

Other legal experts say differing results in court cases opens the door for changing the status of improvisation: “One case holds that ‘melodic and harmonic embellishments’ such as those frequently improvised by any competent musician are not sufficiently original to earn copyright protection for an arrangement of a public domain work. Yet, another case states that the addition of new ‘fingering, dynamic marks, tempo indications, slurs, and phrasing’ can suffice to satisfy the criterion of originality set up by law.”

Apart from anything that may result from pursuing legislative or judicial angles, musicians can take a number of steps on their own. Be aware that those ads on Google to get your material copyrighted for $99 are a complete waste of money. As soon as you write or record your music, it is protected.

It’s important that more and more jazz artists release music on their own labels and, if possible, start their own publishing companies so they will receive all the money that can come from mechanical royalties, sheet music, radio play, use in film and television, and streaming. Jazz performers need to be aggressive in submitting their recordings for use in film and TV, where they can be decently compensated. This includes musicians who play jazz of any kind, as there are period productions that can use music from all eras of jazz.

Many musicians have taken a positive step by having their own websites where they can directly collect payments for files and CDs of their work. Others work through larger websites that take a relatively small percentage of the profits.

Jazz musicians and arrangers will never recoup the enormous amount of money that should have been their due for the last 100 years and it’s unlikely that the law will ever be changed to protect improvisations. While the labyrinthine licensing and recording industry infrastructure doesn’t make it easy, jazz practitioners and supporters need to mobilize all possible resources to maximize their rights under the law.

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