When an artist does not claim copyright

Copyright matters affecting music and musicians.
Post Reply
Regular Member
Regular Member
Posts: 17
Joined: Thu Feb 02, 2017 7:49 pm
Location: New Zealand

When an artist does not claim copyright

Post by PeterMillett »

Can anyone comment on the following unusual situation regarding music copyright?

A singer records a cover/parody version of a traditional public domain Christmas song.

The singer does not claim copyright on the new cover/parody version. (I assume the lyrics are written down on paper.)

The new cover/parody version becomes a hit.

The singer unexpectedly dies.

The new cover/parody version is never placed into any form of copyright after the singer's death.

My understanding is that anyone can now record their version of the singer's parody/cover version without any requirement to seek copyright approval?

The song is not in the public domain however, but rather just 'copyright free'.

But surely there must be a catch? Wouldn't the lyrics written down on paper by the singer qualify as automatic copyright? (the lyrics on paper may or may not have been kept somewhere.) Or is a song exempt from 'literature' copyright because the words are only sung, not written down?

In any case, if a new recording of the song is released I would imagine that it would not be possible to publish the lyrics as that would then fall under literature copyright if the original lyrics could be traced.

Cheers for your thoughts.

User avatar
Posts: 2664
Joined: Fri Jan 29, 2010 12:43 am

Post by AndyJ »

Hi Pete,

You have highlighted one of the anomalies with copyright. It comes into existence for vitrtualy all literary, musical, dramatic or artistic works the moment they are 'fixed' in some way. So as long as a work is just performed orally, like a traditional folk song or an impromptu speech, then no copyright exists in those works. It is hard to imagine an artistic work which could fall outside copyright in this way since it will almost always be fixed in some way. Perhaps drawing with your finger on a steamed-up mirror comes the closest.

And as you highlight, the author of a work is not obliged to enforce or even acknowledge the copyright which has been automatically created. This occurs every day: the quick note to a work colleague, a tweet, a doodle on a scrap of paper, a shopping list. For most people it wouldn't enter their heads that copyright might exist in their trivial 'works' and there would be no thought given to enforcing that copyright.

At a higher level many folk see no need to commercially exploit their creativity - tweeters, graffiti artists, for example - and therefore they also do not bother to enforce the rights which come with being a copyright owner. But those rights don't cease to exist, they just remain dormant. The use of the Creative Commons licensing system is one way of formally and clearly signalling this situation: the author provides an open licence for anyone else to use his/her work, but it is implict that the underlying copyright remains.

So to turn to your example. After the singer's death, there is nothing to prevent his heirs from trying to invoke copyright in his song. Since it became a hit, it must have been fixed in a recording of some kind and will probably have been written down by someone even if the singer himself always performed it from memory. This would be enough to create the copyright (a famous case from 1900 called Walter v Lane established that a work didn't need to be fixed by its author or with his knowledge/permission for copyright to come into existence). However there might be a legal objection known as <a href="https://en.wikipedia.org/wiki/Laches_(e ... >laches</a> which would make it difficult for an heir to successfully claim infringement if a court was persuaded that the author had never intended to enforce copyright, having effectively adopted something similar to a Creative Commons licence for his song.

Taking your last point, if someone performed and published a new version of the song, then this would have no effect on the copyright status of the original work which would still be determined by the author's date of death plus whatever post mortem period (50 or 70 years usually) which applied in his country of domicile. However there would be a new copyright in the sound recording made by the new singer, which would last for 50 or 70 years from the date the recording was made, depending on the applicable term in the country of origin (see Article 17 of the WIPO Performances and Phonograms Treaty which has been ratified by 76 countries so far, and Article 1(2)(a) of the EU Directive 2011/77 which extended the term to 70 years for EU member states).

All of the foregoing applies to the economic rights of copyright. In addition there are the moral rights: to be acknowledged as the author, not to damage the author's honour by derogatory treatment of the work and so on. In some jurisdictions such as the common law countries, these moral rights are weak or non-existent (USA for example), while in civil code countries they tend to be strong, long lasting and un-waivable.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
Post Reply