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Creator Compensation in the Digital Age & Changes in Copyright Law

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Cultural Intellectual Property & American Indian Music

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The Legal Protection of Traditional American Indian Music

© James D. Nason

Professor Emeritus, Department of Anthropology

Curator Emeritus of Pacific and American Ethnology, Burke Museum

University of Washington

8 May 2005

Invited Address for the First Nations Composers Forum, St. Paul, MN

Not for citation or quotation without the express written permission of the author.

The Legal Protection of Traditional American Indian Music

James D. Nason

8 May 2005

Thank you very much for the invitation to discuss some of the issues in the legal protection of traditional American Indian music. Let me start by saying that I am not a lawyer, and my acquaintanceship with this issue stems from my research and teaching courses at the University of Washington in cultural property law

My interest in this subject began in the early 1970s after we created the American Indian Studies Center at the University of Washington, which I had the privilege of directing. I began to get calls from people in local tribal communities asking if I could help them trace the whereabouts of recordings of songs and oral accounts done by their elders for visiting researchers. No caller knew the name of the researcher, where the researcher had been from (state, university, city), and certainly no one had anything like a written agreement or other document from the researcher saying what they would do with the recordings. Some of these recordings had apparently been made in the 1940s and 1950s.

I thought at the time that I probably couldn’t be of much use, since the search for these recordings would be hit and miss - usually through reviews of publications, using only a source tribe name for the search. But it was worth the effort since these were often the only records of songs and other things that the family had of that now-deceased elder, and in some cases the only records of those particular songs which were now lost to the family and community. My grandfather was apparently a good singer at the gatherings our tribe held in the Wichita Mountains in Oklahoma, but since he had died before I was born I never heard him - and no one I knew had any recordings of him singing, but how I would love to have access to such recordings.

Despite various efforts and numerous calls to colleagues, in not one single case were we ever able to find one of these recordings. I was fairly certain that in many cases the researchers had probably been students whose work had never been published, and whose recordings might or might not still be in existence.

Given these unhappy outcomes, I was struck by the fact that tribal communities did not then have any mechanisms that might be used to protect the rights of their members - or of the community itself - when outsiders wished to make recordings. Nor, for that matter, had outside researchers made much any effort to keep in touch, to provide copies, or to do any of those things which ethically seemed so obvious to me at the time as basic responsibilities of someone doing research.

This point was forcefully brought home to me in 1998 when a Flathead elder spoke at a tribal college meeting devoted to this issue, and said that a famous researcher had recorded lots of their songs, but refused to share his tape recordings with the tribe bcause he had promised one woman who had been recorded that he would not release the recordings. The elder went on to muse about the record albums of their songs that had been released, without benefit to the tribe, from these same recordings. He concluded by saying that he had originally thought that Indian people should share with non-Indians, but now he was having second thoughts given the profits made by non-Indians on Indian knowledge, and the lack of respect shown by many of those who received that knowledge.

The other aspect in this issue that I thought was important had to do with the legal status of these recordings. What rights did a researcher acquire when they made such a recording? What rights of ownership and control did the elder retain? Or the tribe? Did it matter if the songs were traditionally individually owned, family owned, or perhaps even community “owned”? Indeed, what was the status of all those records of Native American music and esoteric lore and other information that had been made since the late 1800s? Did individual Indians, or their communities, still have any rights in those recordings?

We are, of course, talking about intellectual property - that subset of property known as personalty - as opposed to realty - that in American law includes such intangible property as copyright, patents, trademarks, and a few other odds and ends. Within this I am most concerned about what may be called “traditional” knowledge, and what I have referred to in earlier publications as “esoteric” knowledge. By this I mean traditional valued knowledge passed from generation to generation within families or communities where it may be owned or used in accord with indigenous ownership laws. This includes new knowledge, songs, etc. that become a part of the recognized system of such knowledge within a community and which will also be passed along through time. Some of these intellectual properties require special training or status for acquisition or use , and some may be held in trust by an individual or a group within a community for the benefit of all in the community. Sacred songs and regalia within a religious society, for example, would be of this type. Finally, the mechanisms of ownership, control, and transmission lie within traditional community laws.

While there is variation across Native North America in how these traditional laws operate and what they define and protect, it is clear that issues of ownership and disposition in songs, music, and other oral literature are recognized in traditional law, with varying means of enforcement. What is much less clear is the status of this same intellectual property when it leaves the community of origin. And this is really the heart of what I intend to discuss today.

By the late 1800s American and European scholars widely believed that Indians were disappearing as a population and thus as recognizable cultures. Population loss was at this time already over 90% and by 1900 many tribal communities had disappeared entirely. As a result, a massive campaign to collect objects, informaion, and even bodies was undertaken across Native North America and this resulted in most of the huge Indian collections that are now in museums large and small. NMAI’s collection is a good case in point, with more than 1.2 million objects being collected within only a few decades by or under the aegis of one individual.

This was “salvage” anthropology at its most ambitious. Mundane and sacred objects, objects from families as well as patrimony belong to the whole community, songs and lore and language data and information on every conceivable topic were all collected. The object of this enterprise was to ensure that a record existed - as one notable of the time put it - of the “vanishing race of red men” for future generations to study. A great deal of this data was published through the annual reports of the national museum or in the bulletins of the Bureau of American Ethnology or in other serial publications dedicated to this material. And, then as later, a huge number of books were also written based on these collections.

During this period the research protocols in existence said nothing about the relationships between the researcher and community. The researcher’s job was to collect data, and this was seen as the overriding good - no matter how the task was performed. Deception, theft, and other means were sometimes used in collecting, just as in other cases true trust and respect marked the research work that was carried out. The data collected and then published became the property of either the institution which had sponsored the research and publication or that of the individual researcher personally. I don’t know of any cases where the community of origin for the collected traditional knowledge reserved or continued to have any rights to that information, although some may exist. In all of these cases, the status of this knowledge as soon as it left the community was determined by Federal laws, not tribal laws.

This began to change somewhat in 1971 with the publication of the “Principles of Professional Responsibility” by the American Anthropological Association, which asserted that:

“an anthropologist’s paramount responibility is to those he studies. When there is a conflict of interest, these individuals must come first. The anthropologist must do everything within his power to protect their physical, social, and psychological welfare and to honor their dignity and privacy. ...Where research involves the acquistion of material and information transferred on the assumption of trust between persons, it is axiomatic that the rights, interests, and sensitivities of those studied must be safeguarded.

...There should be no expoitation of invididual informants for personal gain. Fair return should be given them for all services.”

But, at the same time, the researcher’s responsibility to the discipline was to:

“undertake no secret research or any research whose results cannot be freely derived and publically reported”.

Taken together, these guidelines implied that a researcher shouldn’t acquire data without ensuring that the rights of those in the community, and especially informants, were protected. But this was a matter of personal interpretation by the researcher, just as the prohibition against exploitation simply meant some agreed upon compensation - in those days taken to be a more or less standard fee paid to the informant. It certainly didn’t imply that anyone but the researcher was, in fact, the owner of the data that had been acquired. Indeed, it was presumed to be inevitably true that the researcher did own the data collected - and has been so for centuries in Western science.

This belief about the ownership of research data was in part based on the idea that the goals of science are pure and noble, and its results inevitably for the good, whether the researcher is an anthropologist, an ethnomusicologist, or a chemist. The first constraint on this attitude came with federal guidelines in the early 1970s on human subject rights, which required informed consent by subjects taking part in research activities, including interviews and recordings. But this did not otherwise affect the ownership of any resulting data.

So, even if I had been able to find the recordings that callers wanted me to help them locate, it appeared to me that obtaining copies would not necessarily be possible unless the researcher felt like making copies. Certainly there appeared to be no law in the 1970s to compel them to do so. The status of any recordings seemed fairly clear - any rights of copyright were in the hands of the researcher.

In the absence of any written agreement between a researcher and an informant the data collected is presumed to be owned by the researcher, as the product of their collecting work The creative activity is the research itself, not the presentation of that data. Of course, there were no written agreements like this in earlier years. Did possession of the data not imply agreement and therefore a kind of contractual assent to the recording? After all, unless duress could be shown, how could a recording have been made unless it was with the agreement of the informant? If - as would have been true after the 1970s - an informed consent form was signed, this would simply add to the impression that a voluntary agreement had led to the completion of the recording which was now in the possession of the researcher to be disposed of by that person as they saw fit. And, since these were rarely if ever public performances, there could not be an argument for performance copyright.

Would it matter if someone else in the family or community felt their rights were abridged by that recording? Perhaps, but only within the jurisdictional limits of the tribal community, which would not usually extend to an outside researcher in the absence of some other form of written or provable verbal agreement, contract, or comparable document.

What if the recording was considered to be a part of the patrimonial property of the community as a whole? That is, property which is owned by the community as a whole and which could never be alienated by one person. In this case the tribe would have to not only take action against the person who alienated the property, but also find a mechanism to pursue recovery outside of the tribal community’s jurisdictional limits. As to the first matter, I’ve had a number of tribal chairmen, lawyers, and others say to me that they would never presume to question the motives of an elder who had decided to share what they know with someone else. As to the other issue, what law could be used to seek recovery?

This is a significant question for several reasons, not least because of the limited powers of tribal governments to enforce tribal laws on non-members, even on tribal lands. One precedent, set in Washington in the Oliphant vs. Suquamish Tribe case, in 1978, summarily stated that Indian courts did not have criminal jurisdiction over non-Indians absent express Congressional authorization (435 U.S. 191, 98 S.Ct.1011, 55L.Ed.2nd 209).

But, express Congressional authorization over some Indian property was embodied in the 1990 NAGPRA law (the Native American Graves Protection and Repatriation Act), which made it mandatory for government agencies and institutions in receipt of Federal support to provide Federally recongized tribes with access to information about and potential ownership of American Indian human remains, associated and unassociated funerary objects, sacred objects, and objects of patrimony. This exceptionally powerful law, which confirmed tribal sovereignty in various ways, gave tribes a no-time limit open access opportunity to recover cultural materials that they could, within Congressional limits, define as sacred or patrimonial. Most museums did not consider, when required to provide summaries and inventories to tribes of their holdings, any of the products of intellectual property research, but instead focused theit attention on 3-dimenional objects alone. At the Burke Museum, where I am in charge of repatriation, I did provide inventories of all recorded materials as well as photos, since we knew that in some communities certain oral data would be owned and/or potentially sacred, just as in others some photos of sacred objects were themselves thus sacred.

The repatriation of cultural materials can be claimed by Federally recogized tribes or lineal descendants who can prove cultural affiliation. While a lineal descendant does not have to be a tribal member, but only the descendant of one, the tribe must show affiliation in the form of “A relationship of shared group identity which can reasonably be traced historically or prehistorically between members of a present-day Indian tribe or Native Hawaiian organization and an identifiable earlier group.”

Thus far, no one has come forward to claim any of these intellectual property cultural materials from us, or, as far as I know, from any other museum or government agency. But could they do so? I believe this remains a distinct possibility, although any repatriation of such materials would have to meet several tests set forth in the law. For example, to be repatriated as a sacred object it would be required to show that the song was necessary in order to carry out a sacred ceremony for the benefit of current believers, or to recreate or renew a ceremony, and this would presume that access to that song in some form other than ownership was required.

Precise language: “Sacred objects means items that are specific ceremonial objects needed by traditional Native American religious leaders for the current practice of traditional Native American religions by their present-day adherents.” - While many items ...might be imbued with sacredness in the eyes of an individual, these regulations are specifically limited to objects that were devoted to a traditional Native American religious ceremony or ritual and which have religious significance or function in the continued observance or renewal of such ceremony.”

A “traditional religious leader” must be someone who is recognized by members of that Indian tribe as being responsible for performing cultural duties relating to the ceremonial or religious traditions of that group or, exercising a leadership role in an Indian tribe based on the group’s cultural , ceremonial, or religious practices.”

Who would then own that song? Probably in most cases the tribe itself, since it is the body empowered by this law to seek recovery. Once within tribal hands the tribal government can do as it pleases - including turning the song over to an individual, family, or group. Would this repatriation abrogate copyright held presumptively by someone else? Perhaps so, but let’s examine the other potential relevant category of property covered by NAGPRA.

What about a song or music claimed as patrimony? Again, the legal premise under NAGPRA is that the song or music would have to be shown to have been the collective property of the whole group, or some important group within the tribe.

Precise language: “Objects of cultural patrimony means cultural items having ongoing historical, traditional, or cultural importance central to the Indian Tribe itself, rather than property owned by an indvidual Tribal member. These objects are of such central importance that they may not be alienated, appropriated, or conveyed by any individual Tribal member. Such objects must have been considered inalienable at the time the object was separated from the group.”

For example, if a Pueblo Kiva Society had a song recorded unbeknowst to them, or had entrusted it to an individual who later shared it with outsiders, they could make the argument that that song was not only sacred but also patrimonial, since Kiva Society religious property - including songs - are held and used for the collective benefit of the whole tribal community and thus can be argued to be patrimonial in nature. Such property can be repatriated to the Kiva Society via the tribal government. So again we ask, would this transfer be a transfer of ownership and would that repatriation restore all ownership rights to the tribe?

The principle seems fairly clear. If a rattle or drum is repatriated to a tribe as a cultural sacred object, for example, the tribe gains full and complete ownership rights in that rattle or drum, including any rights of copyright. The same holds true for an object of patrimony that is repatriated to a tribe. Unless, of course, a final test set out in NAGPRA can’t be met: the right of possession.

Congress recognized that there might well be cases where objects had been transferred out of tribal hands voluntarily. The sale of Northwest Coast traditional crest objects, for example, would fall routinely into this category. Thus it created the possibility that an outsider - an individual, museum, or agency - could have “right of possession”.

“Right of possession’ means possession obtained with the voluntary consent of an individual or group that had authority of alienation. The original acquisition of a Native American unassociated funerary object, sacred object, or object of cultural patrimony from an Indian tribe or Native Hawaiian organization with the voluntary consent of an individual or group with authority to alienate such object is deemed to give right of possession of that object....”

This takes us back to the post-1970s National Research Act period which set forth regulations regarding human subjects in research and which required consent forms. If such a consent form had been signed, then the implication is that the information provided did transfer with right of possession to the recorder, at least of the recording itself , and in the absence of any other written agreement about the research and its products. But what about the pre-1970s period when no such consent forms were required?

Without some form of direct proof that an object was voluntarily alienated then “right of possession” is certainly not automatically clearcut. This is the situation in which many government agencies and museums find themselves with regard to “right of possession”. Their records are usually from non-Indian donors or sellers where you cannot establish that the original transfer was legitimate or else they indicate a transfer from an Indian source indicated simply as “obtained from” etc., but without any details to make it clear how the transfer of ownership was completed. In all of these cases we assume that the burden of proof is on the museum or agency and that in all but the most obvious cases that burden will not be met, i.e. the tribe can claim repatriation without a successful “right of possession” counterclaim by the institution.

So, what about a researcher who in the 1930s or 1940s period collected recordings which were not published, but who instead gave those recordings to a museum or agency archives. Are these ‘objects’ which could otherwise be repatriated under NAGPRA if they met the cultural criteria? I believe they are, since Federal copyright law treats recordings as objects, i.e. the fixed tangible expression of that music or song or oral literature.

What if these recordings were not in an institution, but instead in private posession?

NAGPRA only applies to institutionally controlled cultural resources, and not to anything in the private arena, with one exception. The exception is that NAGPRA is also criminal law, in that it has an illegal trafficking provision:

“ Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit any Native American cultural items obtained in violation of the Native American Grave Protection and Repatriation act shall be fined in accordance with this title, imprisoned not more than one year, or both, and in the case of a second or subsequent violation, be fined in accordance with this title, imprisoned not more than 5 years or both.”

So private ownership may be legal, but disposition may be illegal, including donation to a museum since that would confer tax benefits, a profit to the donor.

There are several key issues of interpretation involved in this review of NAGPRA:

For example, are songs etc. which have been recorded ‘objects’ as defined by the law, or was Congressional intent to exclude intellectual property, as opposed to tangible personal

property. This is a point that has not yet been argued on either side in a real case. If they are objects, can they be repatriated? I think so, since those regulations are clear.

Thus far, no tribe has sought, been denied, or repatriated a song, music, a specific piece of tradiitional oral literature, or a photograph to the best of my knowledge. But there is also no time limit on this law and most tribes are still in the process of trying to resolve archaeological issues- including the repatriation and disposition of human remains, so we may yet see these kinds of materials brought up for repatriation under NAGPRA. And, of course, there is the additional problem that most museums and agencies would not have included any of these kinds of materials in the summary or inventory lists that they have sent tribes as required by NAGPRA, unless they were specifically asked by a tribe to do so.

This brings us to the issue of copyright law and its relationship to traditional music. As you are all aware - and probably far better than I am - Western copyright law has certain inherent constraints and fundamental principles that affect traditional knowledge and its products.

Copyright is a legal protection granted to original works of authorship that can be put into a tangible form, including with the aid of a machine, such as a recording device. And, copyright exists automatically from the moment of creation, i.e. when it is fixed in a copy or recorded the first time. So, musical works and recordings can be copyright protected from unauthorized or unlicensed use, distribution, reproduction, and performance, but only if these two basic conditions can be met in the first place. More important, no work that is entirely common property, is lacking in original authorship, or which is not fixed in tangible form, can be copyrighted.

Can traditional Native American music be copyrighted? Well, it depends. Some traditional Native American music is, of course, individually owned and if it is the creation of that individual and that individual is willing to fix it permanently in tangible form then copyright is applicable.

Beyond this, we must ask if the music has been created at some time in the past and passed along orally to many different individuals or groups of individuals. Individually controlled songs might be copyrighted if we assumed that only one person or group of persons were willing to assert authorship at one moment in time through the mechanism of fixing the music in tangible form, i.e. recording it. But this clearly stretches the idea of original authorship, perhaps beyond the law’s intent. It also begs the question of whether or not someone is willing to see certain songs or music recorded, a problematic issue for some sacred materials in some tribes. Also, would we accord a guardian of a song or music who holds the music on behalf of a larger group the autonomous right to copyright that music? Certainly not by traditional law in many tribal communities, but this does not appear to be a problem as far as US copyright law is concerned, so long as the original authorship issue can be resolved.

In other words, I believe that traditional Native American music lies in an intellectual property limbo for tribal communities for several reasons:

(1) Music recorded by an outsider, without any formal agreement regarding ownership or copyright with the source or the tribe, and which was then published, would have copyright going to the outsider, placing the the music out of tribal hands and subject to the applicable duration of copyright protection.

(and, of course, recordings made earlier but not found now are basically a moot issue)

(2) if that copyright duration has now elapsed then the materials are in the public domain and also not subject to tribal control

(3) if the music was recorded and deposited in an institution then NAGPRA’s provisions might apply for the repatriation of such works to tribal control but only if the music is either sacred or patrimonial, can be shown to have been acquired without right of possession, cultural affiliation can be demonstrated by the tribe to the work can be proven, and, the institution does not contest the request on the grounds that the music is not an ‘object’

and, finally,

(4) traditional music appears to lie outside the protections of US copyright law because it can’t meet the original authorship requirements in the law, or no one is willing to fix it in tangible form. Copyright is essentially an individual intellectual property right, not applicable to traditional group held intellectual property.

I do not believe that it is feasible to imagine modifying yet again U.S. copyright law to include traditional music, if only because its basic and inherent nature would disqualify it - you’d be asking Congress to essentially create two diametrically opposed sets of copyright laws in one law.

This is not a unique circumstance. Many indigenous groups share these concerns. In 1993, for example, the Mataatua Declaration issued in New Zealand sought UN based legal protections for indigenous intellectual property. The Maori continue to seek a way to use Maori values and cultural beliefs to protect their intellectual property and, moreover, to enforce that in non-Maori law. One interim measure is a Maori artists initiative to develop a national brand name and logo for all Maori-made products, and thus using this trademark for legal protection. This is similar to earlier efforts in Canada and elsewhere to have artists’ guild and logos, or, for example, to the American Indian Arts and Crafts Act. But all of these don’t really address the main issue we’re considering today, or what tribes might do.

I believe it is reasonable for us to consider what tribal governments themselves can do to protect traditional music, and I think that there are in fact several options.

First, tribal governments can adopt research contracts, agreements, or requirements that control the manner in which traditional knowledge, including music, is acquired by those from outside the community. Some governments have done this.

Among the very first of these are the research forms developed by the Massett and the the Hesquiaht, in British Columbia, in 1971 and 1972. Aside from requiring complete disclosure of all funding and institutional connections, the Massett tribal document also requires that researchers indicate their willingess to negotiate editorial, copyright, and distribution rights, leave originals of audio or other tapes in the community, and so on.

The Hesquiaht also required, at least in once case, that the researcher turn over all recordings to the tribe, not publish personal data without tribal permission, turn over all royalties from resulting works to the tribe, and allow the tribe to include their own review and comments in any publication.

This process continues. For example, here is a part of the proposed Hopi Cultural Preservation Code:

“The CPO will develop a Research and Ethical Guidelines policy for all proposed research to be conducted at Hopi. This will include a review porcess with rules and procedures to assist permitted research. This will ensure that ‘any sensitive information that Hopi does not want to become public knowledge is identified and removed from a document prior to its being published’. .....The knowledge of our history and culture has been of interest to many. Intellectual Property can include, but is not limited to, traditional medicinal plants and their uses, the Hopi language, clan stories, songs, teachings, and the knowledge of traditional seeds and their uses. The Code will address and allow for more research in trademark, patent, and copyright laws for possible use by the Hopi tribe for the Hopi people. In that respect, the Code will seek to protect esoteric, cultural, and religious knowledge from unauthorized research and commodification.”

Other tribes today commonly have tribal legal staff prepare formal contracts for any research work. This strategy serves several purposes: (1) it places the researcher on warning that there are things that can and cannot be done, that will and will not be allowed; (2) it gives the tribe the opportunity to consider what is in its best interests with respect to the proposed research; and, (3) it establishes an enforcable contract that can be pursued if its provisions are violated. Finally, such contracts might actually be on a ‘work for hire’ basis in which case the tribe would automatically own all of the products of the work done.

Some Western tribes take a much more relaxed view of this, and only require that copies of recordings made be left with the tribe, and that all such recordings actually be made by tribal staff on behalf of the researcher. In these cases the tribe seeks not to deny any tribal member the right to do or say what they will to a researcher, but only to make sure that the tribal member is not being placed in a situation where they will be taken advantage of by the researcher, and that the tribe has a copy of all that is done. The researcher keeps the originals of the recordings.

Still another option seems to me to be both feasible and potentially valuable - the adoption by tribal governments of their own copyright laws based on their own values and precepts for traditional knowledge, including traditional music.

Such laws could recognize non-original authorship, group ownership, and other aspects of traditional intellectual property important to the tribal community, as well as confering tribal copyright on individually authored and owned materials such as those now recognized and protected by US Copyright law. The possibility of reciprocal recognition of tribal copyright by the US copyright office could also resolve the jurisdictional enforcement problem once materials leave the community. But is this a good idea? I doubt that everyone would agree that creating a new tribal law to protect sometimes ancient and sacred intellectual property is reasonable. I can only say that such laws can and should be crafted to meet each individual community’s standards, to reflect each community’s values, cultural beliefs, and traditional laws. And there are serious issues that would need to be discussed and agreed upon before enacting a tribal copyright law.

For example, how would we deal with the US copyright law requirement of fixation in tangible form? One possibility is a tribal copyright law provision that establishes tribal certification of authorship or guardianship, with one copy deposited in a secure tribal archives to be accessed and used only by the “owners” at their descretion, or otherwise held by them after an authorized tribal agency certifies the existence of the recording.

In discussions with some tribal artists such laws might also have another benefit: the possibility of new individual creations being far more easily copyrighted and protected than is now often true, thus preventing misappropriation. This would be especially so with reciprocal agreements with the US Copyright Office.

The possibility of adopting tribal copyright laws may not be an ideal solution to this continuing problem, nor perhaps the best solution, nor even a solution that some small tribes could carry out without assistance. It asks tribes to take on a new role - but so too does the other option of research controls and contracts. Is it worth pursuing? That also depends on how much we value traditional music and its control within tribal communities. I think it is. I think it is imperative that we find ways to protect what can still be protected of our traditional knowledge, and welcome your thoughts on how best to do this.

Interesting article about composing for video games

SuperUser Account — 2008-12-08T19:15:43Z

From the LA Times: http://www.latimes.com/business/la-fi-composer8-2008dec08,0,4331097.story

EU Plans Overhaul of Music Royalties

SuperUser Account — 2008-07-07T14:46:37Z
To read this very interesting article copy and paste the URL below to your browser. 'http://www.redorbit.com/news/entertainment/1465538/eu_plans_overhaul_of_music_royalties/'>http://www.redorbit.com/news/entertainment/1465538/eu_plans_overhaul_of_music_royalties/

Recording Industry
Decries AM-FM
Broadcasting as
'A Form of Piracy'

SuperUser Account — 2008-06-25T19:58:44Z
Please click onto the link below for the full article. 'http://blog.wired.com/27bstroke6/2008/06/recording-indus.html'>http://blog.wired.com/27bstroke6/2008/06/recording-indus.html

Dubious TV and film music licensing reps target unwitting songwriters

SuperUser Account — 2008-05-13T16:47:29Z

Songwriters Beware

Dubious TV and film music licensing reps target unwitting songwriters

By Linda Rapka, Overture Managing Editor

            The end of the Writers Guild of America strike Feb. 12 has sparked an increase in a tactic by some music licensing reps who approach songwriters with dubious offers to 'pitch' their songs to film and TV while aiming to keep most of the profits for themselves.

            Local 47 member Lisa Haley, who picked up a Grammy nomination for her album 'King Cake' last month, was approached by two separate companies less than a week and a half after the WGA strike ended. She received the pitches by way of e-mail messages from two companies that she said offered to represent her at 'exorbitant rates.'

            The first e-mail she received on Feb. 21 offered her a music licensing arrangement where the company would keep 100 percent of publishing, Haley would keep 100 percent of writers publishing, and they would split the sync license 50/50.

            To many songwriters inexperienced in the realm of music licensing, this may seem like a fair deal. However, musicians need to be aware of the customary industry standard rates for the placement of songs in film/TV media. General rates for music licensing is 20 percent of publishing, zero percent of writers' publishing, and 20 percent of sync license.

            Haley, who has experience licensing her music, was quick to see that this offer was no fair deal at all.'If you are offered a different rate – for example, the rep wants 100 percent of publishing, and wants 50 percent of the sync license, but graciously offers to 'let' you keep your writers' publishing, or if the rep asks to re-copyright your songs with new titles, or asks to own/be added to the song's copyright, beware!' warns Haley. 'There are many legitimate licensing reps willing to work with quality songs, without taking unfair advantage of the artist.'

            The world of music licensing is a highly lucrative and complex one that can be best understood as a system of permissions and payments tied to various copyrights. Some licensing deals will be granted for a flat fee, while others will require the payment of royalties. The three biggest licensing areas are mechanical, performance, and synchronization licenses.

          Music licensing is the licensed use of copyrighted music. Licensing is intended to ensure that the creators of musical works get paid for their work. A purchaser of recorded music owns the media on which the music is stored, not the music itself. A purchaser has limited rights to use and reproduce the recorded work.

            Under U.S. copyright law, protected music can generally only be used after permission is granted from the copyright owner. Such consent is generally granted with a license, which usually involves the payment of a fee.
            If your music is used in a film or television program, filing a cue sheet with one of the performing rights organizations (ASCAP, BMI, SESAC, SoundExchange) is an important step in getting paid for your work. Cue sheets are required to determine what music has been performed and which members to pay for the performances. Typically the production company is responsible for filing the cue sheet. For more information about this process, contact a performing rights organization.
Reprinted with permission by author.

Gabriela Lena Frank: Composite Identity;Translating Culture

Georgia Wettlin-Larsen — 2008-04-28T14:33:57Z
Cover - People Ideas in Profile Gabriela Lena Frank: Composite Identity Translating Culture into Music Published: April 1, 2008 New Music Box: Writer Frank J. Oteri Frank J. Oteri: How does that fluidity play out in your compositional language? How do you translate that musically? Gabriela Lena Frank: I would say it's a matter of degree. Some pieces will sound more or less Latin, but that can mean a lot of different things. There have been times where somebody heard something and they're expecting a certain sound, and then there's nothing Latin in the music itself. It's just programmatically based on a myth, a fairy tale from Latin America. And they get a little upset. They come up to me and say, 'What was Latin about that? I didn't hear anything Latin.' Other times, it's too Latin for them. 'String quartets don't play like that.' And so it's fluid in the degree in which I will pull on influences. Often it depends on what new style I have been studying. I've been for about four or five years now—not just casually—really getting to understand Afro-Peruano culture, which is so beautiful and such an important part of Peruvian identity. And they're very proud of it. Part of the reason is that there are several dance groups that have come out now from Peru. Jolgorio is a big one. It's been touring all around the States. There's a very important scholar who's finally being written about named Nicomedes Santa Cruz, who was like a black Peruvian Bartók. He collected stories in addition to music. He also wrote a lot of poetry. I've been translating a lot of his poems into English, and I'd like to set them to song. At the moment, I'm totally intimidated. They're such blood and guts texts that I really have to be able to honor his legacy, and it's going to take me a while to figure that out. FJO: Now would you set them in English or Spanish? GLF: I prefer Spanish because that's the language that he sang in. But the English would just be for the translations. FJO: I wanted to return to a comment you made earlier about the pentatonic scale. GLF: The dreaded pentatonic scale. People, we're more than five. FJO: That scale has been used to conjure so many different kinds of ethnic music: Chinese, Japanese, Indonesian, African, Latin music even. It exists in so many different parts of the world. So in a way to give it a specific ethnic identity— GLF: It's pointless. It's not highlighting the uniqueness of anybody. We've all used it, and it's historically part of a lot of cultures. FJO: So then what would be an example of a sound that would be identifiably Latin? When somebody said to you that a string quartet shouldn't sound like such-and-such, it's too Latin, what does that actually mean musically? GLF: Gotta ask that person. I'm still wondering what they were pinpointing in that specific instance. Although they liked the piece, they just thought it wasn't appropriate for quartet. I don't know. Peruvian music is so diverse that Peruvians themselves argue about what's truly Peruvian. From town to town, people argue about who owns the true huayno, which is a quintessential Indian form. If you want one from Ayacucho, oh, they're so sad. This was the birthplace of Sendero Luminoso; there's a real element of tragedy. Or do you want the huayno that's been tempered with Peruvian-African influences from the southern coastal part of Peru, Chincha or Ica? And so, within the country itself, they're not in agreement about what it is. Huayno should be nothing more than Andean harp, a sad violin, and maybe a quena, if they can afford it. But then here I come along and say I'm going to write a huayno for string quartet. I feel that as long as I'm aware of how people are invested in different forms, I'm not being irresponsible; I can legitimately put my own spin on what a huayno is. FJO: Now, in your trips to Peru, I imagine you bring your music with you and play recordings. Or maybe local groups there play some of this music. Peruvian Musicians Photo by Gabriela Lena Frank GLF: The response has been so overwhelmingly positive to the recordings that I have brought that I feel almost embarrassed and I haven't quite analyzed that sentiment. I've been able to develop a very strong language for string quartet, [but] to date I've not come across a string quartet in Peru that has the conservatory chops to play some of these things. But I have come across panpipe players that could do the equivalent and beyond. They can hocket a line like you've never seen before and never get off. And so I actually try to appropriate those virtuosic tendencies and bring it to string quartet. I recently hooked up with Miguel Harth-Bedoya, who's starting an amazing project called Caminos del Inka which will be the Andean version of the Silk Road project. The Camino Road—the Inca path or Inca road—is our Silk Road. It's what united the Inca kingdom, which was the dominant civilization at that time when the Spaniards came over. He and I have had some very interesting conversations about classical music and how it finds a life in Latin America. Latin America still suffers from this awful colonial hangover. The greatest musical treasure of Latin America, personally for me, is its folkloric music, not necessarily its classical music, classical—meaning for the orchestra, for string quartets. FJO: So would you ever think about writing for those folkloric ensembles? GLF: It's a different kind of cross-fertilization I've not done a lot yet. But I'm in discussions with some musicians to do that. Most of them don't read music, so there's going to have to be a lot of back and forth. They have incredible memories, and they're able to memorize anything. FJO: You mentioned earlier how you were able to put a lot of details about performing techniques in a piece of chamber music. The bulk of your catalogue is still chamber music, but you're starting to compose more and more for orchestra. How much detail is in those scores? How much detail could you ever have in an orchestral score where a musician is likely to look at it on his or her stand, maybe a couple of times? GLF: Orchestra musicians may not even have the program note. It's got this exotic Indian name, and they don't even know what it means. They don't know what they're trying to conjure. It's been a real big dilemma, but the way I've gotten around it is to talk to players on my own in between the rehearsals. I grab them backstage and I'll sweet talk 'em. And I'll say, 'Can you do this? Can you get a more breathy tone?' Or talk to the principals: 'Can you tell your viola section to play this on a C string and up high and put on a sordino? Let's add that and that will sound more like a panpipe. You know, sound more like a breathy wind instrument from the highlands of Peru. It's got to have that.' But it's not in the score necessarily, and that's been a real dilemma for me. But chamber groups, I can get it into the score and most of the chamber groups playing my stuff now live with the music for so long they want all that extra information. They'll e-mail me and ask me even more and follow up with recordings. That said, I've been very blessed so far. The conductors and the orchestras that have played my stuff have given me a lot of rehearsal time. I've been very lucky. And they have asked for explanations and have asked for me to talk to the orchestra. We're in rehearsal taking up precious minutes of time and union regulated hours to be able to do this. So it hasn't been a bad experience. FJO: You've done all this music for strings, but considering that you're such an accomplished pianist—I remember this incredible recording you did of music by your one-time composition teacher Leslie Bassett. GLF: Yeah, yeah, yeah. That was a killer. It was really good for me to do. FJO: But it's odd that despite your activities as a player, you don't really write for the instrument that you perform on. GLF: That's another dilemma for me. Everything I write now is commissioned. That's a dream—I can support myself freelancing. Particularly during some years when I was very sick and I wasn't able to be as active as I wanted, I still had the income coming in. I wasn't destitute. But the commissions have not been piano works, and so that has been a source of anxiety for me because I really want to get back to writing for piano. But in the last five or six years, I've been working on a big book of piano pieces. The idea is that they're between one and four minutes each, and people can mix and match as they want to make a set. They all are hallmarks of some Andean style, something that really caught my fancy that I was able to really finesse at an instrument that I know well. Some of these were like sourdough starter for an actual string quartet, a non-piano piece. I think people going back will be able to identify, 'Oh, that's the main theme for this. That's where it came from.' So it was also a compositional generative tool for all of these commissions. So I do have piano works I've been working on. They just haven't gone the route of the commissioned works. FJO: This idea of being able to mix and match reminds me of what the Chiara Quartet did with your piece Leyendas: An Andean Walkabout. They actually spread out the different movements of your piece and played them in between other repertoire on their concert. GLF: They do it a couple different ways. One of the ways, and they checked with me to make sure I was OK with it, was to make it an actual musical walkabout. It ushers people through a concert with [music by] Zhou Long and Golijov and Bartók. I'm very proud that the idea they took to is mestizaje. It's a concept that I was talking to them about many years ago that inspired me by a writer named José María Arguedas who lived from 1911 to '69. He was somebody like me who romanticized the Inca past, but from within Peru. He called himself a modern Quechua man, Quechua being the Inca language. He was of Spanish heritage, very fair-skinned, but he had an evil stepmother who put him in the basement with the Indians, so he grew up speaking Quechua. He grew up very sympathetic to the marginalized, people of Peru. And so his idea of mestizaje, coming from the word mestizo, of mixed race, was that this is a state in which cultures can co-exist without one subjugating another, without one devouring another, without one being co-opted by another. And I have to believe in that. I'm mestiza. I have to believe that the white liberal guilt part of me is not being too pandering to the Latino part and that the Latino part of me is not being angry with the white part. I have to be able to feel that I'm not in conflict with myself. FJO: Which is a very tricky navigation. In a way, using Spanish to reference something Quechua is problematic. Do you understand Quechua? GLF: I have written songs using Quechua text. It's taken me a while because I've been learning Quechua on my own. I can read Quechua if I have the help of a dictionary _________________ Georgia Wettlin Larsen

THE AMERICAN COMPOSERS FORUM ANNOUNCES RE-TOOLED WEBSITE

Georgia Wettlin-Larsen — 2008-04-28T14:29:34Z
THE AMERICAN COMPOSERS FORUM ANNOUNCES THE RE-LAUNCH OF ITS AMERICAN INDIAN WEBSITE March 6, 2008, St. Paul Minnesota. The American Composers Forum (ACF) and the First Nations Composer Initiative (FNCI) are pleased to announce the re- launch of its “virtual” chapter for American Indian composers and musicians, featuring a new blog called FNCI FORUM. This totally re-tooled web site, www.fnci.org serves as a critical network for dialogue and interchange in the field of American Indian/First Nations/Alaska Native/Indigenous music. Artist profiles will now be much easier to upload and manage, with greatly enhanced and user friendly drop down menus and tools. Look for the new site sometime this week! Current and new artists are invited to re-register on the Artist Profile page and upgrade your profiles. Special features of the site include information and resources to help connect American Indian artists. • Register as an American Indian musical artist and build your own artist profile page for free! • Browse a comprehensive roster of over 100 American Indian/Indigenous musical artists from a wide array of musical genres, replete with artist biographies, photos, web links, and MP3 download of artist’s music. • Interactive blogging through the new FNCI FORUMS, and the ability to post events, performances • Calls for commissions • Articles, reviews, writings and research in the field. The core membership of the FNCI has committed itself to mentoring our youth and other emerging musical Artists and the website will incorporate on-line mentoring in the coming year. Mentors will be recruited from the core Advisory Group and from the wider musical community and matched with students or other emerging artists. Both American Indians and non-Indians will benefit from FNCI by encouraging the composition of music by American Indian artists and providing linkages to a broad array of compositional opportunities and performing venues. The goal of FNCI is to provide mechanisms and support through which the many voices of American Indian musical artists can be heard. With the help of a distinguished Advisory Group convened in December of 2007, to discuss and adopt a three year strategic plan, we are continuing to build an infrastructure that provides a supportive environment, meet the needs they have identified and provide a mechanism for ongoing discussion, information distribution, education, recognition, mentorship and maintaining long term program sustainability. FNCI ADVISORY MEMBERS Dr. Louis Ballard (Posthumously) (Quapaw/Cherokee) - Classical Traditional Composer Howard Bass - Cultural Arts Manager, National Museum of the American Indian Raven Chacon (Dine’) - Emerging Classical, Avant-garde Composer Jim Clairmont (Lakota) - Spiritual Leader, Traditionalist, Educator of the Pow-Wow Tradition Barbara Croall (Odawah) - Classical Traditional Composer Brent Michael Davids (Mohican) - Classical Composer Joy Harjo (Muskogee) - Musician, Poet, Author Charlotte Heth (Cherokee) - Ethnomusicologist, Scholar of American Indian Music Elizabeth Jaakola (Ojibwe) - Mezzo Soprano, Instructor at Fond du Lac Tribal and Community College Jennifer Elizabeth Kreisberg (Tuscarora) - Traditional Contemporary Singer/Composer Barbara McAlister (Cherokee) Dramatic Mezzo Soprano R. Carlos Nakai (Dine’/Ute) - Traditional and Contemporary Musician and Composer George Quincy (Choctaw) - Classical Composer Bird Runningwater (Cheyenne/Mescalero Apache) - Director of Native American Initiatives: The Sundance Film Institute Joanne Shenandoah (Oneida) - Traditional and Contemporary Performer and Vocalist Jerod Impichchaachaaha’ Tate (Chickasaw) - Classical Composer Ed Wapp (Comanche/Sac Fox) - Traditional and Contemporary Musician, Ethnomusicologist Founded in 1973, the American Composers Forum (the Forum) has grown from an innovative regional initiative into one of the nation’s premier composer service organizations. The Forum supports over 1,700 members in all 50 states through granting, commissioning and performance programs. The Forum provides composers at varying stages of their careers with valuable resources for professional and artistic development. It works to foster a demand for new music by linking communities with composers and performers, while developing the next generation of composers, musicians, and music patrons. The Forum’s First Nations Composer Initiative (FNCI) has established an infrastructure for support of traditional and contemporary music by American Indian composers and musicians. It is also a re-granting program, having announced its third round of grant activity in February of this year, with preparations being made to announce a fourth round of grants awards for musical projects throughout North America. (www.fnci.org/opportunities) Georgia Wettlin Larsen Director Back to top Display posts from previous: All Posts1 Day7 Days2 Weeks1 Month3 Months6 Months1 Year Oldest FirstNewest First FNCI Forum Index -> General Discussion Georgia Wettlin Larsen

FNCI Grantees Willing to Answer Music Biz Questions

Georgia Wettlin-Larsen — 2008-04-28T14:28:36Z
Posted: Sun Apr 06, 2008 2:06 pm    Post subject: FNCI Grantees Willing to Answer Music Biz Questions    Sunday, April 6, 2008 FNCI Grantees Willing to Answer Music Biz Questions Greetings to All interested in what's happening in the Native music world! This blog is here to provide folks exposure to the current works of Native musical artists. It is meant to be interactive. Please feel free to ask pertinent questions relevant to the field of Indigenous music! The artists are more than happy to be of assistance. http://fnci.blogspot.com/ Best To All! Georgia Wettlin Larsen Director First Nations Composer Initiative _________________ Georgia Wettlin Larsen

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Gabriela Lena Frank: Composite Identity;Translating Culture

THE AMERICAN COMPOSERS FORUM ANNOUNCES RE-TOOLED WEBSITE

FNCI Grantees Willing to Answer Music Biz Questions

Recording Industry
Decries AM-FM
Broadcasting as
'A Form of Piracy'