The fact that your collaborator wrote the lyrics 38 years is particularly tricky, because it is before the revised copyright act of 1976 went into effect (in 1978)! If the lyrics were never published in any publicly available form, the work is protected by the revised law for 70 years after her death or 120 years from composition if the year of her death cannot be determined (unlikely these days, of course, with the social security register).

If it was published, but was published before 1978 without a copyright notice or between 1978 and 1989 without a notice and without later registration, it’s in the public domain. Otherwise, it should be fully protected for a prolonged period of time.

Without a contract, you’re engaged in good ethical behavior, and it may be that a lawyer tells you that an oral agreement made 38 years ago without any witnesses should be considered unenforceable and  you could privately escrow the money for the lyricist should she ever appear or you find her.

But qualified legal advice seems like the best course, as I imagine scenarios like this are routine.

I would appreciate your thoughts on this subject and any suggestions you might have that I might follow in pursuit of resolution to this matter.
Thank you for your valued insights!

My reaction is much the same as yours, I think – it sounds wonderful, I admire them, it’s a public service – but I can’t help thinking they’re walking into a minefield.

If anybody remembers the late MP3.com, they were doing great until their founder/CEO announced they were going to do something which sounded perfectly reasonable and sensible: if you showed you had such-and-such CD in your collection already, you could listen to their copy of it from their servers without having to upload it.  Makes perfect sense.

However, from a legal standpoint, there was absolutely no connection between you having a (presumably) legitimate copy of a recording and their being allowed to play you a different copy, when you hadn’t paid for the latter individual copy.  I don’t know whether he didn’t have any legal advice or he ignored the advice he got, but they implemented it and were immediately sued into near-complete bankruptcy.  (A $53 million setlement with UMG, with the prospect of being sued further by other music companies.)

I really really like having Amoeba around to shop from, and I hope to God they know what they’re doing and avoid a similar fate.

Also, they’re not giving the stuff away. It has to be purchased and then a purchaser would ostensibly have to upload somewhere in order for it to be “out there forever.”

Of course, they may have another intention entirely.  Amoeba may know they’re about to be driven out of business anyways by the digital music industry. So maybe before the inevitable eventuality of their bankruptcy, their goal is to get as much music as possible released into the digital ecosystem.  Because once it’s out there, it’s out there forever!

His version is statutorily licensed as a version that is substantially similar enough to fall under compulsory license. If it were not, he would have had to negotiate with licensing agents for Anthony Ray (Sir Mix-A-Lot) to get additional rights. The composition rights would still have vested in Ray, unless he agreed to create some kind of derivative work license.

Compulsory licensed works are specifically excluded in current copyright law from obtaining a derivative copyright. They simply do not get any protection. The only protection an arrangement is afforded is to the original composer. Any subsequent compulsory licensee would be equally free to plagiarize the arrangement. (Note that Fox did not use compulsory license. They had to negotiate with Ray’s agents to obtain a sync license and probably other licenses which are not compulsory and may be withheld.)

If you are arguing that Coulton’s work is substantially unrelated to the original performance, that’s not an issue. The law doesn’t refer to the performance, but to the composition that is being licensed. To wit: “the arrangement shall not change the basic melody or fundamental character of the work…” http://www.law.cornell.edu/uscode/text/17/115Coulton's version may sound radically different, but compared to the music notation and lyrics it is substantively the same under the law. This is why Johnny Rotten’s and Frank Sinatra’s “My Way” were both legally licensed in this manner.Coulton has never tried to claim this was a legally derivative work, because that would violate his compulsory license. Harry Fox Agency, Ray, and whomever have never said to Coulton, your work doesn’t fall within the parameters, nor would they, because it clearly does. (Again, Coulton doesn’t have to follow Ray’s first performance, only the primary melody and organization.)Maybe the confusion is the definition of composition? In the law and in my comment, it’s about the form of the music as if it were written down. A different arrangement of the same composition with the same melody is, under the way, the same composition.Coulton would have been free to seek a license, and it’s possible he would have gotten one, to create a true derivative work. He did not, and nobody involved is attempting to maintain that it has separate copyright.His audio does have specifically granted separate copyright (the phonogram right), which is a separate issue here, if Fox turns out to have actually copied that directly.

If he got permission to use the lyrics from Sir Mix-A-Lot, it’s not materially different from two different composers setting the same poem in the art song world (which is a common occurrence): the lyrics are copyrighted by the author and the music is copyrighted by the composers, and neither finished song is considered a derivative of the other, only of the poem. It’s just that one of the composers in this case is also the poet.

That’s the thing, though: in a derivative work, copyright for substantive changes (in this case, the music in its entirety) is vested in the author of those changes. This is according to the U.S. Copyright Office – I’m not discussing my own country’s laws (Canada), but they’re not substantially different in this regard. Up here, this separation can lead to things like the Gershwin songbook being in copyright because Ira’s lyrics are still under copyright, but Gershwin’s solo piano arrangements of the songs being PD because George’s music is out of copyright. (They are considered derivative works of George’s own music, not of Ira’s lyrics.)

If Coulton got permission from Sir Mix-A-Lot to use the lyrics, I think he has a solid case to bring against Fox for failure to pay royalties. It’s directly analogous to, say, me getting permission from Ira Gershwin’s estate to make a new and different setting of the lyrics for “I’ve Got Rhythm”. If Fox used my song on Glee, sold it on iTunes, and paid Gershwin’s estate royalties for the lyrics, do you really think they’d be off the hook with me? If he doesn’t have proper permission, well, he needs to change the lyrics (which has happened in the past as well), but he still has solid copyright on the music (which I’m presuming is as original as it sounds to me).

This latter point gives us, I think, the acid test: if Coulton published the song with his own lyrics, a) would it still be considered a derivative work of Sir Mix-A-Lot’s song, and b) would Coulton be under any legal obligation to seek permission from, or pay fees to, anyone else to disseminate the work? I think the answer is clearly “No” in both cases. If Coulton is feeling perverse, I suspect he can do just that, and exert his royalty claims on Fox based on his derivative of his own work. (“Your Honour, this is Sir Mix-A-Lot’s song, and this is mine. Do they sound even remotely the same? Does the music in the “cover” in Glee sound like Sir Mix-A-Lot’s music or mine? Does the defendant claim that someone else has copyright on the tune and its arrangement?”)

Perhaps I’m missing something in this analysis? I can’t see it, because I don’t think the rules for cover versions properly apply here (it takes more than lyrics to define the authorship of a song), but I’m open to instruction.

(Edit: Corrected my misspelling of Jonathon Coulton’s name. My bad.)

If/when these works enter the public domain, there is not going to be any media they can be copied from. There will be archives of huge swathes of history made by people who, like amoeba, skirted the law and risked the big stick in order to preserve an important part of our culture for those who come after us. It’s sad.

The same head hunter ‘make an example’ logic would follow here wouldn’t it? Then again the ‘make an example’ logic didn’t work then, and unlike random freeloader freddie these people are making efforts, and using those efforts in their advertising pitch, to try leaving money for if/when copyright holders start showing up.

So maybe the RIAA /IS/ learning.

Patent trolls though. I doubt they’ll ever learn. Kinda surprised folk haven’t come out of the wood works. Then again they’re after low hanging fruit, easy meat. Nobody wants to be the first to take Aomeba to court and find out that they’re about to get their heads stomped in.

Hell if nothing else you’d think they’d want to get some good PR by congratulating these guys for doing the ‘right’ thing by both opening up previously thought closed revenue streams and holding the money for any rights holders to step forward.

God and FSM both know that they’ve needed some kind of good press.

Further, there’s just not enough sure money in this to press Amoeba for firms to acquire phonogram or composers’ rights. The danger Amoeba faces is an existing rightsholder who discovers the connection and decides to file suit. Prospectively, it seems much less likely.

Sooner or later, one of them or the RIAA will try the novel theory that anyone who knowingly *bought* any of those downloads is also violating copyright and start going after customer lists and then it will get *really* ugly as the damage awards are so out of proportion to the “loss”.

But the RIAA in recent years shifted to making changes in laws to cut Internet service to repeat violators in extra-judicial processes.

However I want to go to their store(s) and buy from them, support the digitizing and preserving of these old beasts before time erodes the materials down to uselessness.

Seems to me that the cause of promoting science and useful arts and the notion of “limited” have both been lost, not to mention the fact that much of the time actual “Authors and Inventors” are not, in fact, granted “exclusive Right.” 

78 rpm stuff is almost surely 100% under the common/state law sets of rights until 2067.

The reason Amoeba calls out master recordings is that if some collector owns 1,000 master records and wants to try out the law about phonogram rights, he or she might try it, or they might just enjoy some cash.

The trouble with current law is the that price for each violation is so high, regardless of whether you make any money off the project, that Amoeba could be sued for millions of dollars for selling $50 of music. That’s the uncertainty. It’s unlikely, but it’s a huge risk.