I was just reading the “Happy Birthday” thread and it reminded me of something I read a long time ago about how, in the early days of the development of modern copyright laws, traditional/folk/very old songs whose authors were unknown or lost to history, could be freely claimed by anyone who put in the paperwork. There was a specific term for these “free” songs, I don’t remember what it was. Since there was no way to prove that the person submitting the paperwork wasn’t the author, even if the song had been well known for years and years, the copyright was approved and royalties could be collected and licenses could be sold. Apparently tons of African-American musicians were screwed out of their due share by crafty white entrepreneurs using this loophole in early copyright law.
Does anyone have any idea what I’m talking about or is my subconscious fabricating false memories?
Until music licensing was set up in the early 20th century, only the sheet music was copyrightable, so that wasn’t an issue. And while sheet music was lucrative for the publishers, it was far too hit or miss for the songwriters (every famous US composer prior to music licensing died broke).
If someone claimed a public domain song, it could be challenged by anyone who wanted to publish it, not just the composer. All they had to do was show something that indicated the song was in the public domain. However, sheet music has been copyrighted in the US since 1764, so there was little chance that songs were stolen from a published source.
At the same time, it was certainly possible to take an obscure song from a composer and publish it as your own, though in practice it was much easier to buy the song from the songwriter and get all rights. There are cases going on fairly recently – Leo Kottke was given a minor payment for a song of his that he claims was later used as as Pepsi jingle in the early 70s, but it’s possible that Pepsi came up with the jingle independently and decided to pay him off just in case he decided to sue.
There really was never a “loophole” in the law other than the fact that black musicians may have never published their work.
I read about a case recently where a pianist in Britain had a moderately successful career as a classical recording artist until it was shown by computer fingerprinting that he music was copied. Her husband was her producer and they recorded in a home studio (supposedly). It looks like all he did was copy recordings from other obscure but good pianist, make some minor altenations (timing) and pass them off as hers. After all, you have to be pretty familiar with one person’s rendition of Beethoven’s Moonlight Sonata to recongnize it as copied from the source, rather than just another person playing the same sheet music.
Eventually, someone got suspicious and started using a digital comparison software to see. So theft can happen - it’s just harder.