The following is an article I wrote on American music copyright laws and how they have affected blues and jazz musicians. I originally wrote it for a graduate class on Copyright Law in 2007, and I just finished updating and revising it. I hope you enjoy it, and I would welcome your comments as well.

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US Copyright Laws and the Plight of Blues and Jazz Musicians

Throughout my adult life I have read extensively on all aspects of jazz, but the subject that has interested me the most is the personal struggles of most jazz musicians. The stories of jazz musicians in the 20^th century are stories wrought with sadness, tragedy, drug addiction, alcoholism, poverty, and racism. Very few of the jazz musicians, jazz aficionados, and jazz DJs I have met over the years have had any kind of understanding of the various federal copyright laws that have been passed during the 20^th century. These laws have exploited many blues musicians and jazz musicians over the past century and left them at a great disadvantage. Books and articles on jazz and blues are filled with gut wrenching stories of great musicians who composed original works and never received a penny of royalty compensation for them. I realize that your eyes might be glazing over, so before I lose your attention allow me to help you navigate the murky waters of US copyright law and royalties and how they relate to blues and jazz musicians. 

The best place to start is by reviewing a section of the 1976 copyright act. Section 101 defines sound recordings as

works that result from the fixation of a series of musical, spoken, or other sounds, but do not include the sounds accompanying a motion picture or other audio visual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied. ¹

This passage from the 1976 copyright act is the starting point for all of the confusion, ambiguity, and vagueness that is found in music copyright law. The main problem is that the owner of the sound recording copyright has very different rights than the owner of the musical work captured in the sound recording. The most important point to remember is that the owner of a sound recording usually will not be able to control its performance, whereas the owner of the musical work usually enjoys the complete performance rights. This issue is much more prevalent in the world of classical music and stage plays.

The next item of historical interest is that under the original 1909 copyright act, there was no federal protection for sound recordings. This did not change until 1971 with the passage of the Sound Recording Act. At this time, the recording industry was being hit hard by an abundance of unauthorized bootleg recordings. Even though there had been a hodge-podge of state laws conferring some common law protection for sound recordings, there was a clear need for federal protection. I have to admit that the first time I read that there was no federal protection prior to 1972, I was astounded. However, one has to bear in mind that before 1972 the only technology available to circumvent copyright law was good old magnetic recording tape. Digital technology including the Internet, downloading, and iPods did not even exist at this time.

Another important point is that the 1976 copyright law did not change the status of recordings made before 1972. Section 301c of the 1976 copyright act covers this, but unfortunately leaves pre 1972 sound recordings in a kind of state law legal limbo. The Copyright Act of 1976 was implemented to address advances in technology that had occurred since the 1909 act. Under the 1909 act, the duration of copyright protection was twenty-eight years with an optional twenty-eight year extension, adding up to a 56 year term. The 1976 act greatly increased the term of protection. Section 302 of the Act expanded protection to “a term consisting of the life of the author and 50 years after the author’s death.”2 Additionally, the 1976 act created a static seventy-five-year term (dated from the date of publication) for works made for hire, anonymous works, and pseudonymous works. The extension term for works copyrighted before 1978 that had not already entered the public domain was increased from twenty-eight years to forty-seven years, giving a total term of seventy-five years. 1998 saw the passage of the Digital Millennium Copyright Act. Under this law, copyright protection was extended to the duration of the author’s life plus seventy years for general copyrights and to ninety-five years for works made for hire and works copyrighted before 1978. 

 

Are you confused yet? If you are, you’re not alone. This most recent updating of US copyright law has become very controversial, to say the least. Proponents of file sharing argue that this “life plus 70 years” rule is much too long, and supporters of the 1998 revision (mainly the two behemoth recording companies Sony/BMG and Universal Music) say that the life-plus-70 rule is just.

 

Another way copyright law has placed blues and jazz musicians at a disadvantage is in how the distribution of phonorecords was outlined in the original 1909 copyright act. This act stated that the publication of a sound recording did not publish the musical work. For example, in 1964 when John Coltrane recorded and distributed LP records of his famous copyrighted jazz suite A Love Supreme, neither the sound recording or the jazz suite itself were ever published. This is despite the fact that A Love Supreme is one of the top selling jazz albums of all time. What is ever more bizarre is that even if Impulse Records (the label that originally released A Love Supreme) distributed the album without notice, no forfeiture of the copyright of the jazz suite or recording would occur because there was no publication in the first place.

To understand this bizarre twisting of the law, we have to go back in time to when Teddy Roosevelt was president. An historical glitch occurred in the case of White-Smith Music Co. v. Apollo Co. In this case, the Supreme Court held that the recording of a musical composition onto a piano roll – a mechanical means- was not a copy of the musical composition. Therefore, because a phonorecord was not copy of the work imbedded in it, the sale of the phonorecord did not publish the work. The recording industry relied on the White-Smith doctrine for many years to come, and it became standard procedure to manufacture and distribute records without registering the musical work or publishing the work in any other way. White-Smith finally met its demise with the passage of the 1976 copyright act. The 1976 act states that the publication of a sound recording publishes not only the sound recording, but also publishes the recorded musical composition imbedded in the disc.

It is also important to note that with the passage of the Sound Recording Act of 1971, musical works and sound recordings are not treated equally. Under the 1971 amendment, the publication of a phonorecord stripped away common law rights, and the copyright owner had to abide by the 1909 Act’s notice requirements to avoid the copyright being forfeited. This is where music copyright law gets as murky as the fog in the West Hills on a winter afternoon in Portland. In order to understand all of this, some background on the issue of notice is in order. Prior to the effective date of the Berne Convention Implementation Act of 1988, notice of copyright refers to the affixation of the name of the copyright owner, the date of the first publication of the work, and the symbol c with a circle around it in a reasonably visible location on the work. Before the Berne Convention Act, the 1976 act and all preceding acts required copyright notice for any publicly distributed copy of a work of authorship. The notice requirement is unique to American law; the United States has been the only country where the failure to affix notice on a work could result in copyright forfeiture. I do not know of- and did not find any- cases where musicians of any musical genre were harmed by these confusing laws, although I am certain that there are some. However, this is a topic for another day lest I turn this article into a snooze-fest.

Before moving on to a discussion of how music copyright laws have affected blues and jazz musicians, there needs to be a discussion of the mechanical license– and this will lead us directly to how royalties are handled. The mechanical license imposes substantial limits on the reproduction, adaptation, and distribution rights of copyright owners of music. This sets up a compulsory licensing apparatus for the making and distribution of phonorecords- just as long as they are of non-dramatic musical works. The mechanical license first appeared in the original 1909 copyright act, and to this day is still a major part of the 1976 copyright act. When a phonorecord of a musical composition is distributed to the public, a sound recording can be made of the composition by any person for sale to the public. The owner of the copyrighted music has the exclusive right to make the first distribution to the public. The compulsory license provisions then take effect, and the musical composition is wide open for anyone to make a recording of it and offer it for sale to the public.

An example of this would be if a new trumpet player and singer wanted to do their own version of the Rogers and Hart classic My Funny Valentine. When the first recording of this song was made and distributed (which was a long time ago) the compulsory license provisions took effect at that time. Ever since that time, anyone is free to do their own version of the song (or “cover” as they are now known). However, the new trumpeter/singer must abide by the rules that are outlined in the 1976 copyright act.

(In the case of My Funny Valentine is Chappell Music Co.) for each phonorecord/cassette/CD etc distributed under the license. When the new artist obtains authorization from Chappell Music, an agreement is reached in which market conditions determine the terms.

The new artist who performs the cover required to pay the statutory royalty to the copyright owner. A royalty is a usage-based fee paid by a licensee (the party wanting to use the copyrighted music) to a licensor (the owner of the copyrighted music- the intellectual property). This has been a longstanding component of US copyright law, but during the golden age of jazz and blues recording (roughly the 1930’s through the 1960’s) it was commonplace for the author of an original musical composition to sign over the rights to their work to a company (usually the record label they were recording for) in exchange for the record label’s promoting the work on the composer’s behalf. Unfortunately, there was no formal system for handling and distributing royalties during this golden age of jazz and blues recording. Very few blues and jazz musicians of this period had the sufficient knowledge of US copyright laws or the good legal advice required to ensure that they received a fair share of the royalties for their original compositions. The list of blues and jazz musicians who fell victim to this is as long as a John Coltrane solo at a live concert. The example that still haunts me (and probably always will) is the famous tenor saxophonist Hank Mobley. He recorded countless albums for the storied label Blue Note from 1955 to 1970 (many of them classics) yet he died alone and penniless in a tiny Philadelphia apartment in 1986. Even the normally savvy Duke Ellington fell prey to the legal maneuvering of his manager Irving Mills. Mills had his name listed as co-composer of many classic Ellington compositions, when in fact Mills had no hand whatsoever in the creation of the music.

The compulsory license mentioned previously leads to yet more confusion. The 1976 copyright act included the creation of the Copyright Royalty Tribunal (CRT), which was to be an independent agency operating within the legislative branch of government. Its job was to administer copyright’s compulsory licenses. One of its functions was to set statutory royalty rates for compulsory licenses. Anyone with an expansive knowledge of copyright law is aware that the CRT was a complete disaster. The activities of the tribunal were the subject of constant litigation and criticism. To make a long story short, the CRT was dissolved in 1993 when Congress established Copyright Arbitration Royalty Panels (CARPS). These panels would be convened on an as-needed basis. However, these CARPS were costly to run and were not very efficient, so in 2004 they were eliminated and replaced with three Copyright Royalty Judges. These judges operate full time and are appointed by the Librarian of Congress. Prior to the 1976 copyright act, there appears to be no formal federal system of handling copyrights for musical works and musical recordings (if there were any prior to 1976, I have not found any reference to them).

As blues evolved into jazz during the 1920’s, the first superstars of jazz appeared- mainly Louis Armstrong and Duke Ellington. Duke Ellington and Louis Armstrong are two contrasting examples of musicians who were affected financially by the popularity of jazz music. Louis Armstrong employed a manager named Joe Glaser to handle the trumpeter/singer’s recording deals, concert appearances and overall business affairs. Glaser worked for Armstrong for decades, and stories and rumors abound about how Armstrong was taken advantage of by Glaser (it should be noted that Glaser was White). Glaser reportedly gave Armstrong a very small percentage of the singer’s earnings, and record deals were handled very badly. There were even rumors that Glaser had ties to organized crime- which would not be unusual since many White businessmen from the music industry at this time had mob connections. At this time long before musical recordings had federal copyright protection- and long before any formal system of handling royalties existed- one can only guess how the famous trumpeter/singer was compensated for all of his top selling records (and he sold LOTS of records). Ironically, Armstrong passed away in 1971- just as Congress was working on getting the 1972 Sound Recording Act passed. By all historical accounts, Armstrong was an intelligent man and a great entertainer- but there is no doubt that he would have had substantially more wealth if there was a formal system in place to handle compensation.

The legendary Edward Kennedy “Duke” Ellington is a figure who stands in marked contrast to Louis Armstrong when it comes to being compensated for recording sessions and records sold. Ellington grew up in a privileged family; his father was a White House butler and money was never a problem in the family. Ellington was also an excellent student, and is considered by virtually all historians to have been a child prodigy. He was leading his first group called The Washingtonians when he was still a teenager. Ellington’s superior intelligence was also very much evident when it came to money and financial affairs. The Duke always wore the finest clothes, and during the next 46 years in which he continually operated a big band, his musicians were always well paid. Because there was no formal system of handling royalties, it is hard to say how the Duke always managed to be properly compensated for his work.

Prior to the 1972 Sound Recording Act, copyright for musical works and recordings were handled on a state by state and common law basis. A complete background and explanation of how this system worked for Ellington and other New York based jazz musicians is beyond the scope of this paper. However, it must be noted that Duke Ellington was only one of a small handful of jazz and blues musicians who benefited from this loosely organized system of compensation. The vast majority of blues and jazz musicians of the 20^th century were not very fortunate when it came to being adequately compensated for their musical compositions and recordings. There are countless stories of men and women who created some of the greatest jazz and blues of the 20^th century and how they ended up living lives of poverty, depression, and extreme hardship. When it comes to rattling off a list of the musicians who suffered these hardships, most of them are African-American. They probably were many White jazz musicians who suffered the same fate, but they are much smaller in number. Racism was certainly a major factor in the poor treatment and compensation of Black musicians. Up until the early 1960’s, the vast majority of people who handled the business end of the music business were White men. Our lawmakers in congress at the time were also mostly White men, and these two groups combined create a powerful force.

In all of the scholarly books on jazz that I have read, the prevailing opinion is that US laws at the time (what few copyright laws even existed) were written and enforced (or not enforced) to deliberately put Black musicians at a disadvantage. In the worlds of blues and R&B music, you will find that this is more prevalent than in any other musical genre. Many of the early 20^th century blues players were uneducated and came from very poor backgrounds, which made them a prime target for the unethical and downright illegal methods of White businessmen. State and federal lawmakers in these days did not possess much knowledge of the music and recording industry (a trend that has only worsened in recent years). As mentioned before, the list of blues pioneers who suffered from this system is long. Some of the most notable names are guitarist Robert Johnson, guitarist Muddy Waters, and singers Bessie Smith and Billie Holiday.

Currently, there are four major organizations that are supposed to secure and distribute royalties for musicians of all kinds. These are called Performing Rights Organizations (PRO’s). These are Broadcast Music Incorporated (BMI), the American Society of Composers, Artists and Performers (ASCAP), the Society of European Stage Authors and Composers (SESAC), and SoundExchange. If you take almost any music CD out of your CD case and look at the disk label or liner notes, you will see the name of the copyright holder (usually) right next to the name of the song, followed by the name of one of these two infamous unions. BMI and ASCAP have been the subject of criticism, anger and dispute among musicians for many years. Since the passing of the Sound Recording Act in 1972, royalties have slowly begun to trickle in to the talented musicians who need and deserve them. However, much more work needed to be done to address this issue.

Over the last few decades, however, some light has begun to appear at the end of the tunnel. Several not for profit organizations have popped up for the exclusive purpose of providing aid to surviving blues and R&B musicians and their heirs, and to address reparations for them. The first of these was the Rhythm and Blues Foundation, which was formed in 1988. This organization came into being after Atlantic Records’ founder Ahmet Ertegun (who just passed away last year) engaged in discussions with blues singer Ruth Brown and a prominent music industry attorney about lost royalties. The foundation also got its start with a $1.5 million donation from the legendary Atlantic Records founder. Another organization that has come into being more recently is Records on the Wall, which was formed about a decade ago. Its sole purpose is to handle licensing of music and the collection of royalties. Another recently formed organization is the Recording Artists Coalition (RAC); it was formed to represent the issues of recording artists in their dealings with large corporate entities and the government. Unlike the two aforementioned organizations, the RAC mainly deals with issues relating to the Digital Millennium Copyright Act of 1998 (DMCA).

There are several writers, journalists, and activists who have been toiling away behind the scenes for many years on behalf of the countless musicians who have been disadvantaged by music copyright and loyalty issues. In my opinion, the leader of this distinguished pack is the award winning jazz critic and civil liberties activist Nat Hentoff. Mr. Hentoff’s list of distinguished credentials include a lengthy stint as a writer for The Village Voice, a column that used to appear in Jazz Times magazine called Final Chorus, and countless liner notes for jazz albums. In one of his last columns for Jazz Times, he told some stories about some legendary jazz musicians who have needed financial support of all kinds. One of these was about an unnamed jazz musician who walked into the offices of the Jazz Foundation of America (an organization in the same mold as the ones mentioned in the previous paragraph) seeking help in paying for his $150 diabetes medicine.³ There was also a story about the legendary jazz trumpeter Freddie Hubbard, who needed money to live on while recovering from life saving quadruple bypass surgery. Hentoff also points out that one major reason why the blues and jazz musicians of yesteryear had such serious financial problems is that they were always paid for recording sessions and performances in cash. There was no pension plan, and most of these musicians did not have the option of getting any royalties.

Over the past few years there has been an abundance of re-releases of classic blues and jazz recordings of the 1950’s and 60’s. From what I have read, it appears as though many of these musicians (or their heirs) have never and will never receive any royalties. There are a few success stories among the throngs of legendary blues and jazz musicians, but their situations are unique because these musicians usually benefited from a very good recording contract, or had tough and daring attorneys who managed to secure ownership of master tapes- and better yet- secure royalties. For the rest of them, there are always organizations like the Rhythm and Blues Foundation, and Records on the Wall. And please don’t forget Nat Hentoff. He closed one of his last Jazz Times columns with the following:

I would appreciate hearing from musicians whose recordings from years ago are now out again. Are they receiving any royalties? Write to me in care of Jazz Times.⁴

Nat Hentoff has always been a man who cares deeply about the lives and well being of blues and jazz musicians. Let’s hope he is not the only one.

BIBLIOGRAPHY

http://www.copyright.gov/title17/circ92.pdf

https://musiced.nafme.org/resources/copyright-center/licensing-and-other-copyright–questions

 Bergman, Alan. “The Mythology of Copyright”. Downbeat, Oct. 2007, p. 180.

 Brooks, Tim. “Showdown at the Copyright Corral: Why Scholars Need to Speak Up about Copyright and Recordings”. Popular Music and Society, July 2005, pp. 411-414.

Butler, Susan. “Clinton Recovers Master Recordings”. Billboard, 18 Jun. 2005

Goodman, Fred. “Labels to Artists: We Own You”. Rolling Stone, 11 May 2000.

Hentoff, Nat. Final Chorus, Jazz Times, Columns and Features. 

http://www.jazztimes.com/columns_and_features/final_chorus/index.cfm?id=3

Holland, Bill. “Acts Reps Decry Copyright Clause”. Billboard, 15 Jan. 2000.

Leaffer, Marshall. Understanding Copyright Law. Newark, NJ: LexisNexis, 2005.

Mitchell, Gail. “Black Artists Struggle to Regain Ownership of Master Recordings”. Billboard, 2 March 2002.

 FOOTNOTES