Once a song has been released in the public domain does it still belong to the artist who created it or does it become the property of all of mankind?
This year seems to be the year of great rock and roll lawsuits. What with one suit, brought by the estate of Spirit guitar player Randy Wolfe against Led Zeppelin claiming copyright infringement, being closely followed by a suit by the estate of blues guitar player Armenter ‘Bo Carter’ Chatmon filed in Nashville, Tennessee, about ten days ago, alleging that legendary guitar player Eric Clapton’s cover of the blues standard ‘Alberta’ in MTV’s Unplugged is wrongly attributed to Huddie Ledbetter, better known by his stage moniker ‘Lead Belly’. Back in the hay day of blues and rock and roll, it was traditional for new artists to record and perform their own renditions of blues standards such as ‘Crossroads’ or jazz compositions like ‘Autumn Leaves’ with their own inflections. The songwriters saw these covers as tributes that attested to the allure of their songs and so their right to create derivative works out of their copyrighted songs remained largely unasserted, leading to the recording of multiple versions of classics like ‘All Along the Watchtower’ or ‘Knocking on Heavens Door’, each more memorable than the last.
Moral rights in the US
Moral rights are a class of rights appurtenant to a copyright which gives the copyright holder the right to paternity and the right to the integrity of the work. Chatmon’s claim probably emanates from his paternity right, or the right to be acknowledged as the author of a creative work, even though the author may have parted with the license to commercially exploit the work.
Historically, courts in the US have been reticent to uphold claims asserting moral rights. The law regarding paternity rights is enshrined in article 6bis of the Berne Convention, to which the US is a signatory. However, owing to widespread trepidation about the Berne Convention infusing the alien concept of moral rights into US domestic legal framework, at the time of signing the treaty, the House committee declared that the convention was not a self-executing instrument and that domestic law was not altered, except in so far as it was specifically altered by the Berne Convention Implementation Act, which in turn specifically stipulates that no increases or reductions in the moral rights of attribution or integrity have been made.
Most other nations have been more welcoming to the integration of moral rights into their domestic jurisprudence. Section 57 of the Indian Copyright Act 1957 fulfils India’s obligation to protect the moral rights of authors as envisaged in article 6bis of the Berne Convention.
The US Congress further evaded the adoption of moral rights by insisting that the agreement on trade-related aspects of intellectual property, which incorporates the Berne Convention, specifically exclude article 6bis. A similar exception for the US has been culled out in the NAFTA.
American law thus remained largely impervious to the infusion of moral rights, despite accession to the Berne Convention until the 1990s, at which juncture the Visual Artists Rights Act was enacted, amending the existing copyright Act to imbue artists with the right against the mutilation or destruction of their visual works of art only. While this is the most extensive moral rights protection afforded in American jurisprudence, its ambit does not extend to songwriters like Chatmon.
Credit where credit is due?
In the wake of this bewildering lacuna in copyright law, authors who were deprived of their paternity rights in the works they engendered sought recourse via the principle of reverse passing off, which is typically associated with trademark infringement claims. At the risk of trivialising the subject, a trademark can be described as a mark used to identify the source of a product. Take for instance a product like Cadbury chocolates. Everyone is familiar with the brand name Cadbury and its distinctive blue and white packaging. Now imagine someone else purchasing Cadbury chocolates, unwrapping them and selling the chocolates in their own packaging under a different brand name. This resale of another’s product in one’s own packaging, under one’s own name, thereby creating confusion in the mind of the consumer as to the source of the product, constitutes the tort of reverse passing off. The remedy of reverse passing off was afforded by the Lanham Federal Trademark Act which makes false and misleading designations of origin actionable.
This analogy was extended to the realm of paternity rights law, or rather the absence of it, to protect the benighted authors whose works were either usurped or legitimately used by licensees but without crediting them as the creative geniuses behind the works.
Chatmon too could have used this principle of law to vindicate his grievances, were it not for the ruling of the US Supreme Court in the case of Dastar v Twentieth Century Fox, which excluded communicative products such as songs from the pale of claims for false attribution as to the origin of products, holding that ‘origin’ within the meaning of the act refers, not to the creator of the work of authorship from which copies are made, but rather to the creator of that particular copy. As a consequence of this ruling, the record label selling Clapton Unplugged CDs could be liable for reverse passing off if they were to sell a Bo Chatmon CD inside the Eric Clapton Unplugged CD case, but not for wrongfully attributing the song ‘Alberta’ to Lead Belly instead of Chatmon on the Unplugged CD.
It is yet unclear whether ‘Alberta’ had already been in the public domain at the time of Clapton’s Unplugged recording, which may pose an additional and perhaps insurmountable impediment to Chatmon’s claim.
The facts alleged in Chatmon’s claim are fairly convoluted, asserting that while Clapton’s Unplugged performance was actually a rendition of Chatmon’s song originally entitled ‘Corrine Corrina’, Clapton changed the title phrase in the song to ‘Alberta’, which is the name of a Lead Belly song bearing no resemblance, and which probably caused the mistake in attributing the song to Lead Belly.
Chatmon had himself also performed this version of the song with Alberta replacing Corrine in the lyrics, at a concert with the Mississippi Sheiks.
Chatmon’s estate has adduced the 2011 live album ‘Wynton Marsalis & Eric Clapton Play The Blues’ in which Clapton had correctly acknowledged Chatmon as the writer of the song in question, as evidence of Clapton’s subsequent mistake.
While the $5 million claim against Clapton, Warner Music Group, Rhino Music, Unplugged broadcasters MTV and Viacom might be an uphill battle for Chatmon’s estate, given the current state of the law, the case is of considerable significance as Clapton is not the only one to have covered ‘Corrine, Corrina’, being in the exalted company of Rod Stewart and now Nobel laureate Bob Dylan, who in his version merely credited the song to “Traditional”.
Opportunity for change
The right of attribution or paternity, which, as compared to copyright is seldom discussed, is of seminal importance to musicians. Dylan has been credited by over 500 films and television series, which have featured his musical masterpieces. Of these, the likes of Boyhood and The Grand Budapest Hotel are a notable few. He is the most widely covered artist who comes to mind, with everyone from Hendrix to Guns & Roses, Clapton to Bob Marley having recreated his songs in their distinct styles. Had each of these artists failed to acknowledge Dylan as the original author of these songs, they would have done him a great disservice. Perhaps Dylan would fade from memory and younger generations would be acquainted with his songs through films like The Grand Budapest Hotel or through Kesha performing ‘It Aint Me, Babe’ at the 2016 Billboard Music Awards, without knowing Dylan to be the prolific poet behind these tunes which time could not erode.
There is, however, a school of detractors against the concept of paternity rights, who contend that once a work is in the public domain it becomes the property of all of mankind to do with as they please. This criticism is particularly reified in the Indian context where there are folk songs and ragas which have been performed by most artists of the genre for generations, yet their provenance is unknown. The idea of attributing these works which have become the common heritage of mankind to one person seems to somehow cheapen the contributions made by other artists to the rich legacy of the works which have made them ubiquitous. This divergence in opinion regarding attribution rights is reconciled by the Berne Convention, which does not require rights of attribution to be protected in works which have come into the public domain after the expiry of the author’s copyright.
Chatmon’s lawsuit furnishes a proactive court the opportunity to usher in a change in the US, or at least Nashville’s attitude towards recognising paternity and moral right claims, which will be quite a paradigm shift in the law. While the trial’s future trajectory is still unclear, it will certainly prove to be of interest to the music industry, legal community and blues aficionados alike.