Public Domain Music, What You Can Use and What You Can’t

jelly-roll-morton-betterLately I have had a significant amount of questions from directors, musicians, and clients about public domain music and how it can be used in their production. Because there is so much confusion about public domain music what qualifies as public domain and what does not, I thought this would be a good topic to cover.

There are different types of media that are in the public domain. They include any music and lyrics published before 1922 or earlier. Those works are considered to be in the public domain in the United States. Take note of the date, because I’ll get back to that later. Music recordings are protected separately under a different copyright known as “phono recordings. Those recordings are typically owned by the record company that paid for the master recording (another important term as it applies to usage in media) and the publisher.

Here’s the deal if you want to use Jelly Roll Morton playing Wolverine Blues, you will have to pay for (at least) themaster use license (referring to the master recording) and oftentimes the synchronization license (which normally goes to the publisher of the song). Why, you may ask? (I’m glad you’re paying attention!) Because the recording of Jelly Roll Morton playing Wolverine Blues is copyrighted material, so you have to pay for the right to the master of the recording for your film, TV show, game or whatever.

The good news is that you are allowed to have a musician play Wolverine Blues and record it and not pay for the rights to the song because the music and lyrics are in the public domain. This is great news because it gives more work to musicians everywhere to re-record some of the classics from yesteryear. Composers can also arrange these songs and create their own copy-righted versions of the song arrangements.

Some examples of public domain music and lyrics include: Danny Boy, Oh! Susanna, Yankee Doodle Boy, and Take Me Out to the Ballgame. I remember when Take Me Out to the Ballgame first came into the public domain, there was everything from Nike commercials with various baseball players singing the song and even a hard-rock version from the Goo Goo Dolls.

The period before 1922 was a rich and creative time for composers, including Gershwin, Stravinsky, and many others. So watching and recording what comes into the public domain has become big business, particularly for advertisers.

A creative example of re-working public domain material can be found in Larry Kirwan’s excellent musical Hard Times: An American Musical.  Kirwan takes Foster’s material to tell the story of the five-points neighborhood of New York during the Civil War and the ethnic tensions that will help to determine the future of New York and its’ people.  You can also find many examples of the American Songbook that includes public domain material.

In my next post, I will begin to explain master use licenses, synchronization licenses, and mechanical royalties.

As always, thanks for reading this! (You are the reason I wrote it).