APPENDIX BMI
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the sampled hours come from public radio stations. BMI uses radio station
logbooks to determine who gets royalties. Owners of performance venues are
required to pay licensing fees even though none of the money will ever go to
those who wrote the music being played on their stage, unless it is also
being played on the radio. Little wonder that many owners regard ASCAP and
BMI as shakedown operations. Some have sworn to me that ASCAP is the Mafia.
ASCAP and BMI also consider the playing of a recording in a public place to
be a “public performance,” and they demand licensing fees for this as well.
They used to demand licensing fees for playing the radio or television until
1998, when Sonny Bono succeeded in passing the “Fairness in Music Licensing
Act” exempting businesses with little enough floor space and few enough
loudspeakers. ASCAP and BMI can demand licensing fees even for the
performance of works whose authors are dead. Under current law, copyright
protection lasts for the life of the artist plus 50 years. For a
corporation, a copyright lasts 75 years. Every time that valuable copyrights
are about to expire, the entertainment industry lobbies for an extension. In
some cases there are identifiable heirs and descendants to receive the
royalties. But I have to agree with Pete Seeger on this one: “The
grandchildren should be able to find some other way to make a living, even if
their grandfather did write ‘How Much Is That Doggie in the Window?’” It is
my intention to will my copyrights to the public domain, but I will not be
around to see if my attempt is successful.
According to Copyright Law, one cannot take the text of a work in the public
domain and copyright it. There may be a valid copyright if there is a
similar work in the public domain. These are called “derivative works.”
They are not wholly original in the sense that they sprang in their entirety
from the author’s mind. But the alteration was the result of original
thought and therefore may be copyrighted. However, the public would not
thereby be shut off from the use of the work in the public domain. A song in
the public domain remains there forever. One can take the text and tune of a
work in the public domain and copyright the arrangement and performance.
“Sloop John B.” is a good example. The song first appeared in Carl
Sandburg’s “American Songbag,” a book of traditional folk songs. Sandburg
was one of many persons who devoted themselves to collecting and preserving
the traditional folk music of the English-speaking world. The song was
recorded by Harry Belafonte, and later made famous by the Beach Boys. Brian
Wilson composed magnificent harmonies and had every right to copyright his
arrangement. But he never claimed to have written the song. I sing “Sloop
John B.” to an African kalimba. Clearly that is my arrangement, and it is
copyrighted.
The unfortunate truth is that anything can be copyrighted, at least for a
time. Unlike the United States Patent Office, there is no one in the
Copyright Office to verify the originality of the work to be copyrighted.
However, I know of at least one federal case in which the court ruled that if
the antiquity of a song can be proven, the copyright fails. John and Alan
Lomax, who also devoted themselves to collecting and preserving traditional
folk music, took the controversial step of copyrighting in their own names
the songs they collected, as if they had written the songs themselves. They
even copyrighted original songs collected from other singers, such as
Leadbelly’s “Good Night Irene.” This prompted Leadbelly to add a verse to
"De Ballad of De Boll Weevil":
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