Jun 6, 2006

Strange Copyright Conversations

(Kris at IOTA 5/20/05)

Kris Delmhorst is rolling into Jammin Java this coming Sunday evening with a full band to support her new release, Strange Conversation.
This collection of tunes is different from her usual self-penned creations not because they're not self-penned but because she used various poems as inspiration. I'm guessing she created a copyright nightmare by choosing this path, but am excited to hear the results.
From her website:
Kris Delmhorst's fourth studio release, Strange Conversation (Signature Sounds, June 2006), is a vital and celebratory meditation on art and its ability to speak across time and distance. After several albums of genre-bending original work, Delmhorst found inspiration in the work of various well-known poets. Some of the poems are set verbatim to music, some dismantled and reassembled in significantly new renditions, others merely used as the jumping-off point for Delmhorst's own literate lyrical take. The fact that the album feels modern, cohesive, and joyful is testament both to the inherent timelessness of the poems and to the skillful adaptations that bring them to life as songs - not to mention Delmhorst's wine-deep, honey-bright voice, which can deliver even a centuries-old phrase directly to the doorstep of the listener's soul.

I don't have my grubbies on a copy of the record yet, so I'm not sure how many of the poems she chose are in the public domain and how many she had to license from those who own the copyrights to the poems. As far as I know, there's no cross-genre mechanical license where she owes the original owner 9.1 cents per poem per album sold. Poems aren't quite songs and the poets probably didn't anticipate making them so.

Analysis after the jump

Some of the poems are set verbatim to music: For songs whose lyrics are exactly the same as a poem, Kris and her peeps probably had to locate the owner and negotiate a license to use those exact words. She may or may not have run into Orphan Works trouble here, where it's hard to figure out who owns the copyright to the poem written so long ago. This is also where one of those cross-genre poem-to-song mechanical licenses would come in mighty handy. An even easier option would be becoming inspired by a poem in the public domain.

Some of the poems are dismantled and reassembled in significantly new renditions: All the same strange conversations for this variety mirror the directly copied ones above, but here Kris and her peeps might have a more viable fair use argument. A fair use is any copying of copyrighted material done for a limited and "transformative" purpose such as to comment upon, criticize or parody a copyrighted work. The underlying rationale of this rule is that the public benefits from your review, which is enhanced by including some of the copyrighted material. When there's a dispute and judges come in to decide whether a use is "fair," they usually consider the following 4 factors:
* the purpose and character of your use
* the nature of the copyrighted work
* the amount and substantiality of the portion taken
* the effect of the use upon the potential market.

In a 1994 case, the Supreme Court emphasized this first factor as being a primary indicator of fair use. At issue is whether the material has been used to help create something new, or merely copied verbatim into another work. When taking portions of copyrighted work, ask yourself the following questions:
* Has the material you have taken from the original work been transformed by adding new expression or meaning?
* Was value added to the original by creating new information, new aesthetics, new insights and understandings?

I wonder if Kris' lawyers were bold enough to not license the poems used in this way and take their chances that they'd win in court by arguing the above 4 factors.

Some of the poems were merely used as the jumping-off point for Delmhorst's own literate lyrical take: My guess is that Kris is in the clear for these selections, and she merely nods in the direction of a poet as a thanks for inspiring a completely new lyric to keep with the theme of the record. Again, I haven't heard it yet, so this is a wild guess.

To see the poems in all their musical action this Sunday, get tickets here.

For more interesting stories and copyright anecdotes,
(1) See the story of Strange Fruit.
(2) See the store of Woody Guthrie: "This song is Copyrighted in U.S., under Seal of Copyright #154085, for a period of 28 years, and anybody caught singin' it without our permission, will be mighty good friends of ourn, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that's all we wanted to do."
—Written by Guthrie in the late 1930s on a songbook distributed to listeners who wanted the words to his recordings

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