Copyright laws prevents release of historic jazz recordings

william-savory.jpg

In the 1930s an audio engineer named William Savory (above) made a lot of high-quality recordings of live jazz performances of Louis Armstrong, Billie Holiday, Benny Goodman, Count Basie, Teddy Wilson, Lester Young, Bunny Berigan, Coleman Hawkins and others. The National Jazz Museum in Harlem acquired the collection after Savory died.

Steven Seidenberg of the ABA Journal reports that "jazz experts were stunned," by the recordings. "The extent and quality of the Savory collection was beyond anything they had imagined."

Unfortunately, we will probably never get to hear the recordings, thanks to current copyright laws.

Among the treasures: Coleman Hawkins, the first great tenor saxophonist in jazz, playing multiple ad-lib choruses on the classic "Body and Soul." Billie Holiday, accompanied only by piano, singing a moving rubato version of "Strange Fruit," a chilling musical condemnation of lynching. The Count Basie Orchestra performing at the world's first outdoor jazz festival, the 1938 Carnival of Swing on Randall's Island in New York City. Basie's tenor sax stars, Lester Young and Herschel Evans, sharing solos on "Texas Shuffle." Benny Goodman and Teddy Wilson--on harpsichord instead of his usual piano--performing "Lady Be Good!" And the list goes on.

The collection is, in a word, historic. "It is a wonderful addition to our knowledge of a great period in jazz," says Dan Morgenstern, director of the Institute of Jazz Studies at Rutgers University in Newark, N.J. And, Morgenstern says, "the sound quality of many of these works is amazing. Some of it is of pristine quality. It is a cultural treasure and should be made widely available."

The question, however, is whether that will happen anytime soon. And if it doesn't, music fans might be justified in putting the blame on copyright law. "The potential copyright liability that could attach to redistribution of these recordings is so large--and, more importantly, so uncertain--that there may never be a public distribution of the recordings," wrote David G. Post, a law professor at Temple University in Philadelphia, on the Volokh Conspiracy blog. "Tracking down all the parties who may have a copyright interest in these performances, and therefore an entitlement to royalty payments (or to enjoining their distribution), is a monumental--and quite possibly an impossible--task."

A Trove of Historic Jazz Recordings has Found a Home in Harlem, But You Can't Hear Them

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  1. Commenter at the link has the right idea: Send it to a country that doesn’t have such copyright restrictions.

    1. More than one copyright to a song. There’s the recording itself, then the composer, then the artists. Google “Sita Sings The Blues” to see how somebody can think they’re using an old jazz recording legally only to have a copyright holder pop up and sue.

  2. cut them on 180 gram vinyl or reel to reel… digitalization of these recordings would be a travesty.

  3. I am truly sick of copyright laws and the corporate nffubyrf who spend their time finding new ways to enforce and abuse them for profit.

    It is proper and *SHOULD* be legal for an individual [not a corporation representing groups of individuals] to copyright their own creative efforts and then profit from them. But the time has come to flip the existing laws on their head. Perhaps ALL creative works, i.e. music, photographs, artwork, books, websites, videos, etc ad nauseam… should be considered public domain, unless otherwise stated by the owner or the owner’s descendants?

    The raping of small companies and individuals by profit seeking giant copyright conglomerates has become obscene.

    1. @Bauart
      Copyright is a government-granted monopoly, so naturally there is going to be a lot of money involved. People have the choice of dealing with the corporations and paying lots of money to do so, or risking coercive government punishments for not supporting their monopoly.

  4. Just go to the parking lot of the museum and look for the guy standing next to the Pinto. He’s got some sweet bootlegs of the collection in the trunk.

  5. Yes, there’s the music copyright, the lyric copyright, the arrangement copyright, the performance copyright, and the recording copyright… and broadcast rights, and commercial rights, and… Any or all of which might be held by anyone along the chain, or some other party entirely, depending on how contracts were written. If you just want to cover a musical number, many works are available through the “mechanical license” system, which provides a single-point fixed-fee mechanism which — very theoretically — gets approximately a reasonable amount of money to approximately the right people. The moment you want to make changes that go beyond just arranging or making trivial lyric changes (fixing gender, for instance), you need to actually negotiate with the holders of one or more of those.

    I applaud the goals of copyright — which are to both encourage creation and give the public the benefit of using the created work. But the system as it has evolved can be a bitch-kitty to operate. And the default lifetime of copyrights has been extended to a wholly unreasonable degree.

    I’m still wishing we could get a general agreement that copyright has to be actively renewed periodically, or it ends early. This minor change would keep publishers from sitting on a huge backlog “because it might become valuable someday” — the effort, and the cost even if the renewal fee is trivial, would become too large unless they exercise some selectivity — while not posing an unreasonable burden to the composers/artists, who have a relatively small collection to keep track of and whom this would motivate to either keep material in publication (to recover this investment) or release it to the public domain (saving the investment, and making it available earlier for the rest of us to play with freely).

    The best of the best would still be kept as exclusives as long as possible, of course — but that’s also the stuff that tends to stay in print anyway.

    And I really don’t see any justification for copyright lasting much longer than patent does. Unfortunately, there’s something of an international one-upsmanship here which drove copyright to an entirely unreasonable duration.

    1. Technogeek suggested that requiring copyright renewals is the solution, and I’d like to disagree. As someone who’s licensed music from the 20s-30s (all of which needed to be renewed mid-century), trying to discern whether a work was renewed, republished, etc and on time is sometimes not worth the time/cost.

  6. Here’s a thought: Congress takes ownership of the recordings through eminent domain because these recordings are of obvious significant historical and cultural value to the people of the United States.

  7. Copyright should have a fee associated with it. Pay the fee each year and you stay protected, don’t pay and it slips into public domain. Start the fee as small as you care to, a penny the first year perhaps, and then the fee doubles each year. This balances out the rewards to the creator with the benefit to society.

  8. I wonder if it weren’t for the potential copyright issues, would this collection not just end up under another copyright?

    And I suspect this won’t change, as various large, rich interest want to protect their intellectual property forever and plenty of cash strapped law makers are happy to help them.

    Now as for using eminent domain, I think that is not needed. I’m pretty sure a library could take these works and do what they care to under current law. I’m aware of several libraries from library of congress to college libraries re-rendering their works to make them easier for patron to access or for archival purposes.

  9. I’m a strong copyright supporter. But in cases like this, the way out is also the way in – through property law.

    I agree with Grimc – this is an obvious candidate for eminent domain. Expropriate the archive, set up an ex post facto fund for claimants who can prove cause for compensation, and fill the fund with proceeds from resale of the music through some suitable front like the Smithsonian, which can in turn take applications for those legitimate holders of the rights as they identify themselves.

    That way, any lingering examples of unknown rights holders won’t hold up release, nor will it hold up payment of some benefit to known rights holders.

    I’d buy into that. Plus, I’m a 30s jazz fan, so I’m also drooling.

  10. > Tracking down all the parties…

    meh: release ’em & let whoever claims copyright make his case:-)

  11. I say the National Jazz Museum teams up with the Library of Congress to release the recordings. The LOC has distributed wonderful collections of folk tunes, etc. believed to be of national cultural interest and collected by archivists who wanted to document the music. It sounds as though that was Savory’s intention– to make a record of the musical moment.

  12. What Adonai said. Can someone post here when the torrent of this hits TPB. Information wants to be free.

  13. As someone who runs a jazz label, take my word for it, there’s no money to be made. Do the right thing and release it so the few people who are interested can enjoy it.

    The extortionists who run the publishing and copyright rackets think the music business still operates as it did in the 1950s. They’re idiots. Every single one of them.

  14. Wouldn’t there only be a copyright issue if they were released for sale? Doesn’t this basically imply that the current holder only wants to release them for profit?

  15. “cut them on 180 gram vinyl or reel to reel… digitalization of these recordings would be a travesty.”

    Yeah, that way only a handful of self-described audiophiles can listen to it instead.

  16. yeah, is there anyting that would prevent the holders of these recordings to ship them off to a country where the rights in question fall under collective licensing arrangements (which should be the case in most european countries) and make them available from there. that would pretty much gurantee that these works will be available in the US as well.

  17. Someone needs to start a movement to get living artists to consider and commit to releasing their catalogues into the public domain when they die. It’s kind of like not having taken the time to write a will. If you die and leave a body of works…someone is going to come along and try to exploit your works for their profit. Many artists probably don’t actually own their music…their labels do. But someone needs to reign in obsessive aggressive non-ecological capitalism. Profit from your work in your lifetime. Leave a little so that your direct descendants can be better off. But get art into the hands of the public so that culture can be enriched…and not exploited after you pass by corporations or used by generation after generation of greedy offspring to waste their lives and never contribute to society or culture.

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