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

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