New Version of Where Have All the Flowers Gone?

Copyright matters affecting music and musicians.
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danoff
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New Version of Where Have All the Flowers Gone?

Post by danoff » Thu Jun 03, 2010 1:27 pm

Hello All,

I am the editor of The Uncertainty Principle, a bi-monthly collection of creations.

For our latest issue I received a submission that is an adaptation of "Where Have All the Flowers Gone" by Pete Seeger

The submission keeps this format,

Where have all the flowers gone?
Long time passing
Where have all the flowers gone?
Long time ago
Where have all the flowers gone?
Girls have picked them every one
When will they ever learn?
When will they ever learn?


but, changes the flowers to something else and the "Girls have picked them every one" to something else. If I want to publish this, do I have to notify and ask permission from Pete Seeger?

Looking at the Wikipedia article, it seems there are a lot of versions out there.
Thanks in advance.

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AndyJ
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Post by AndyJ » Thu Jun 03, 2010 3:23 pm

This may be a case that is covered by the so-called pastiche or parody fair use rules. There is a long history of musical parody, and the law, especially in the USA recognises this (http://www.publaw.com/parody.html). As it has some similarities to the circumstances you have described, you could also take a look at the case of Campbell v. Acuff-Rose Music Inc (http://en.wikipedia.org/wiki/Campbell_v ... usic,_Inc.)
UK statute law does not recognise parody but the courts are beginning to accept the defence in specific cases (more details here: http://www.kent.ac.uk/law/ip/resources/ ... errits.doc.
As Pete Seeger is a US citizen, it is likely that he or his record company recognise the greater scope for using the parody defence under the American Copyright Act, and might be more relaxed in knowing that his permission would not be required if this was a case of parody fair use.
You don't say if the new lyrics are set to music. Bear in mind that the lyrics and music have separate copyright - indeed they are often created by different people - and so although the lyrics may not infringe, using the original melody without permission probably would infringe the music copyright. It is debatable whether the parody defence can be stretched to include the music if the music is not changed, ie it is copied entirely
If you feel that the version you want to publish has significant parody value, you may wish to go ahead and test the water without getting permission. The normal first reaction, if Pete Seeger or his record company object, would be for them to issue a Takedown notice, which if you comply with it, does not automatically bring any additional consequences. If your site makes money (for instance through subscriptions or advertising related to the content) be aware that should the matter ever get to court, one of the factors the US courts take into account when deciding on the parody issue is whether you sought financial gain by publishing the new version. This could include the indirect gain through increased click revenues from advertising as people flocked to download the song.

danoff
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Post by danoff » Sun Jun 06, 2010 1:59 pm

AndyJ,

Thank you for your kind and extensive reply. I would just be publishing the lyrics, not any musical song.

Does it make any difference that the print version of this issue [the only way we make money] will be published in China?

Parody is intriguing, if we did not fall under that umbrella, and were to "test the water" does it matter the financial gain? It seems we will break even or make very little money? We have not made money from an issue yet.

Thanks again.

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AndyJ
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Post by AndyJ » Sun Jun 06, 2010 6:47 pm

China is a signatory to all the major international treaties on copyright including the Berne Convention, the Universal Copyright Convention and TRIPS, so from that point of view publishing the printed lyrics in China doesn't provide any additional advantage, other than the cost and complexity might deter an American record company of fighting a case through the Chinese court system.

If you do not claim the parody defence (assuming you have to defend this at all) then the fact of whether you have or have not made money out of the lyrics is not particularly significant. The copyright holder would be entitled to damages based on his losses, rather than your gains. If he could successfully convince a court that someone who bought your song, would otherwise have bought the sheet music for Pete Seeger's song instead, then your sales might be taken into account, but as that seems a little far-fetched, I don't think your sales will be too important. However, if your song was very successful it would be more likely to draw attention to your operation, and if Pete Seeger's management thought you were making a lot of money, this might make them more tempted to go after you on the basis you might have more assets for them to have in damages. One of the problems with copyright litigation is that often the infringer has no money to pay and so the best a rights holder may get is that the infringement is stopped and some nominal damages are awarded

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