old hymns - new singers

[David Hurdon]

A friend gave me a CD-R of an audio recording made during the funeral service of a relative. It includes several hymn-singing sessions. I'm careful about copyright but I can't think of a reason I could not use these as background audio where appropriate to a video piece. With the possible exception of the keyboardist there were no professionals involved and the hymns can't be copyright today surely. Am I missing something?

David Hurdon

[Paul Tauger]

Even if the hymns are public domain, the arrangements may not be. Also, the audio recording itself is protected by copyright. Finally, many states have right-of-publicity laws that cover the sound of someone's voice. I've not heard of these laws being applied to singing, but there's no reason I could think of that would prevent it.

[John Heskett]

This issue is a very tangled web. It seems to have gotten as bad as figuring out taxes. If I cannot find whom to pay the royalties, I don't worry much beyond that. If someone pops up later and shows they have the copyright, I'll gladly pay them the .08 per retail. I do the usual searches, ASCAP, BMI, SESAC and then Vineyard, Maranatha and Calvary Chapel. If I cannot find the song in those I go ahead with the assumption it is either public domain or just out of the loop.
It is a good point about the arrangment. If a particular arrangment is copyrighted you can always use another or pay the small fee.

[Paul Tauger]

If someone pops up later and shows they have the copyright, I'll gladly pay them the .08 per retail.

If a particular arrangment is copyrighted you can always use another or pay the small fee.

There is no compulsory license, i.e. a statutory license which provides for a small royalty payment to the copyright holder, for synch rights and video/motion picture distribution. If you infringe copyright in this manner, you are liable for damages as specified in the copyright act. These include actual damages, i.e. your gross profits less cost of sales, the copyright owner's lost sales, OR statutory damages which can run as high as $150,000 per infringing act.

If someone pops up later and shows they have the copyright, you are potentially liable for considerably more than 8 cents per copy.

[John Heskett]

We were talking about a CD. <my bad I see now where he wants to use it in a video>

A little different, but still . . . .

So, you are saying, on a song written in 1865 where a person cannot find it listed on any of the copyright handling sites is still NOT usable?

Why don't you tell us exactly what IS the RIGHT way of doing this?

[Paul Tauger]

We were talking about a CD.

Compulsory licenses, as I recall (it's been a while since I've looked at them), apply to doing a "cover" of a previously-recorded and publicly published song, educational broadcasting, etc. There is no compulsory license that permits copying CDs for commercial use.

So, you are saying, on a song written in 1865 where a person cannot find it listed on any of the copyright handling sites is still NOT usable?

No, I'm not saying that at all. A song written in 1865 is in the public domain; you are free to use it any way that you like. However, an _arrangement_ of that song, written in 2003, is a derivative work and is protected under copyright to the extent of the additional original expression created for the arrangement. A recording of the song is also a derivative work, and separately protectable. You are free to use the song, but not the arrangement or the recording.

Copyright protection is absolute. A copyright owner has the right to prohibit _any_ use of their work (subject to fair use exceptions), which means they don't have to make it available through ASCAP or BMI, they don't have to publish it, don't have to license it, etc. I know of a playwright who spent years developing a stage version of "Catcher in the Rye." He sent it to the Salinger estate for approval. He was told, "Great job! You've really translated the feel of the book to stage. This is the best adaptation we've seen. But, sorry, you can't do it." And that was the end of that.

The best place to start is with whoever recorded the hymn. Ask for their permission to use the recording. Contact the church and ask who did the arrangement. If the answer is, "the choir director," ask him/her for a license to use the arrangement. If the answer is, "Oh, we found it in the 'Great Big Book of Hymns," published by Megapublishing Corp., you'll have to contact the publisher and ask for a license.