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Why using nursery rhymes like Lavender’s Blue on TV isn’t always child’s play

MUSIC COPYRIGHT REPORT ON LAVENDER’S BLUE AND HUSH, LITTLE BABY

We were recently asked to research, check and advise as to the copyright status of two nursery rhymes in respect of a proposed performance of either or both of the nursery rhymes for a forthcoming television programme.

The nursery rhymes are “Lavender’s Blue” and “Hush, Little Baby”.

Our findings are as follows:

LAVENDER’S BLUE

On checking the PRS (Performing Right Society Ltd) database, we found in excess of a hundred (100) registrations of the title “Lavender’s Blue”, also shown as LAVENDERS BLUE and LAVENDER BLUE. The majority were marked as either ‘TRAD’ or ‘DP’ (Domaine Public – French for ‘Public Domain’) and commonly known as ‘PD’ i.e. ‘out of copyright’.

Essentially, DP or PD – when related to a song or other musical or literary work – means that the copyright is in the public domain and free for the public to perform, record or otherwise use the song or other musical or literary work. To confirm, the copyright period of a song is the life of the composer(s) plus 70 years except in the USA where songs were protected for 95 years until 1978 after which the copyright term changed to ‘life’ + 70 years.

Further research shows that Lavender’s Blue (otherwise known as Lavender Blue) is an English folk song and nursery rhyme where some of the earliest printed versions date back to the late 17th century. Neither the composer nor author are known. As a result and also confirmed by the notes in the two above paragraphs, it is safe to say that the proposed performance and recording of this PD / ‘out of copyright’ song, LAVENDER’S BLUE, does not require permission or the payment of any fees.

However, please see Advisory Note further below.

HUSH, LITTLE BABY

On checking the PRS (Performing Right Society Ltd) database, we also found in excess of a hundred (100) registrations of the song, also shown as HUSH LITTLE BABY MELODY and HUSH A LITTLE BABY. As with LAVENDER’S BLUE, the majority of registrations were marked as either ‘TRAD’ or ‘DP’ (Domaine Public – French for ‘Public Domain’) and commonly known as ‘PD’ i.e. ‘out of copyright’.

Please see above the 2nd paragraph under LAVENDER’S BLUE confirming the term of copyright in songs and other musical and literary works.

HUSH LITTLE BABY is thought to have originated in the Southern States of America. We could find no dates as to when the song may have been composed and, further, the author is unknown. Considering the numerous traditional versions in existence and the related registrations showing the song as ‘TRAD’, we consider that it is acceptable to take the view that the proposed performance and recording of this PD / ‘out of copyright’ song, HUSH,LITTLE BABY, does not require permission or the payment of any fees.

ADVISORY NOTE

One has to careful when using what may be considered ‘out-of-copyright’ music as there are in existence many published arrangements and adaptations of out-of-copyright classical works, traditional airs, folk tunes and other popular melodies (many of which are registered with PRS and other similar societies).

Therefore, to perform a song which is in the public domain  – and to avoid any claims from copyright owners of existing copyright arrangements of traditional (‘Trad.’) works – such performance(s) should be unaccompanied and sung in its traditional most popular form and in a ‘straight’ manner with no references in the interpretation to existing arrangements.

Having said that, it would be impossible to know of ALL existing arrangements and therefore one cannot be 100% certain that any performance of a traditional song will be different and sufficiently separate to stand alone and be free of any claims. However, the lyrics of both LAVENDER’S BLUE and HUSH, LITTLE BABY with which we were provided, are most common and, subject to our advice on the performance of the songs for the television programme, are the ‘safe’ versions to use. We therefore have to add the proviso that, whilst we have provided a professional and expert opinion in regard to this matter and use our best commercial endeavours to help ensure that the information contained in this report is informed and relevant, neither myself nor my company can take responsibility for any omissions or inaccuracies or for any consequences arising therefrom.

Ivan Chandler
Founder & CEO
Musicologist and Music Copyright Consultant
Musicalities Limited
2nd January 2018

For further advice, please send me an
email

WHAT A PERFORMANCE! (or how not to use music in film)

Are you sitting comfortably? Then I’ll begin ….

Jude and Judy are mates who are both into audio recording, like it’s what they love – try and tell ’em they are wasting their time and you might get a mouthful!

Jude is the audio & recording techie whilst Judy is into sound & music mixing (she’s also an EDM DJ at weekends).

Jude helps Judy by introducing her to the latest gizmos for her mixing and mash-ups and Judy plays Jude’s favourite tracks when he comes along to one of her stonking Friday nights at Bunk Off, a ‘pop up’ night club in the Mendips – there’s hours of re-mixes of their favourite dance/hip hop/rap and US chart hits.

A hip film maker Barney with plenty of dosh from his mother’s fashion design business takes a drive out from Bath to somewhere near Frome and, after a couple of beers in a noisy pub, hears about Bunk Off. After cajoling a slightly inebriated local with beers and chasers, finds out where the place is.

He parks up way down the road and walks up the hill to where there appears to be nothing going on. Then he sees some lights, makes his way down a footpath using his phone for a torch, and then sees what looks like a trap door. He lifts it up and then the noise is dinning. A girl dressed up like Pippa Longstocking with hair as outrageous asked, “Can I Help”. Barney says I am looking for DJs for some new happening film projects. She mumbled something like “alright’, sniggered and told him to be careful coming up the steps. Once he had reached the sawdust ridden floor, a young guy gesticulated to suggest that he should show his wrist! He gave him a rubber stamp with a rather odd logo and said nothing.

Barney thought that the whole thing was a bit weird with people chatting, laughing, dancing, leaning against the wall, looking at Judy and being mesmerised by the whole event. Barney didn’t stay long but handed his card to Judy, saying loudly “Call me!”.

Judy told Jude about the encounter and they called and arranged a meeting at Barney’s place in Bath. Barney told them about the project and they both said they were up for it and when do they start. Barney offered a daily rate of £500 between them, gave them a 2 page contract which they signed and off they went to create sound and music for the film , incidentally tentatively entitled “What A Performance”. It was a fast moving short film with flash ups of actors, singers, guitarists, drummers, DJs, contortionists, street acrobats and sports men & women.

Jude and Judy put together using their combined skills a massive sound track that, in the playback studio, blew Barney away. Barney immediately told his Production Manager to arrange for the film to have a final mix and have it ready for delivery. A week later, Barney submitted the film for the Smashdance Film Festival taking place in Outer Mongolia, March 2018.

In reading the terms and conditions, he decided to pass the details to his lawyer, in particular the wording: “Entrants represent and warrant to the Festival that the Film and all parts thereof are original; that the Film does not contravene the rights of any person or entity and that entrants own or control the Film and all parts thereof and have the sole authority to submit the Film to the Festival.”

Barney’s lawyer asked Barney if he had acquired consents from the performers in his film. Barney said they were only quick flash ups often for only a second and that the clips were taken from YouTube – which is for everyone? The lawyer then asked about the sound and music score; Barney said that Jude and Judy had signed a consent form granting all necessary rights. The lawyer then asked if Jude and Judy had composed the music themselves. Barney said, no, it was a mash-up of samples taken from various dance tracks by people such as David Guetta, Skrillex, Zedd and Afrojack.

Now, it was getting worrying as, whilst the composers had signed an agreement probably indemnifying Barney against any claims, they probably wouldn’t have the money to compensate him.

Barney took up the issue with Jude and Judy who said they don’t have a problem with their ‘live gigs’. Barney reminded them that live gigs are covered by the venue’s PRS and PPL licences – even he knew that! Those licences however, he remembered, do not cover the ‘copying’ or synchronising the music with visual images, particularly in this case, his film!

Further, even if the record companies can contractually grant the featured artists’ rights, any non-contracted musicians i.e. session players may require clearance and approval in respect of their re-used performances.

Then Jude and Judy asked Barney how he got permission for all the clips in his film and, looking a little awkward, he said that they were only short extracts and OK as they were from YouTube. Even Jude and Judy knew that clips from YouTube need permission for re-use in other audio-visual productions.

None of them had allowed for extra money for all this so, fortunately, when they called Musicalities they were advised that, as long as they didn’t mind non-commercial music and music that was specially recorded and produced for use in audio-visual media, there are bundles of so called Production (Library) Music that is pre-cleared covering the composers, the recordings and all the performers including some who are actually DJs themselves – and at only a few hundred pounds.

The key here is use of commercial material for private use and bona fide courses of study is covered under the Copyright Designs and Patents Act; however, commercial use and public performance of copyright material requires consents from all those involved. Can you afford it? If not, use commissioned original scored music, library music – or even no music!

Not sure what you need to do for your project? Contact Musicalities for the low down.

© 2017 Ivan Chandler, Musicalities Ltd. All Rights Reserved

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