Jazz enthusiasts rejoiced when the National Jazz Museum in Harlem purchased the famous Savory Collection last year, but unless Congress fixes a gaping hole in U.S. copyright laws, few people will actually hear the prized recordings.
William Savory was an audio engineer who developed his own method of recording live audio performances in the late 1930s. Up until World War II, most live performances were recorded on 78 rpm records that could capture only about three minutes of music. But Savory used 12- and 16-inch aluminum discs, which enabled him to create and store high quality recordings of longer performances. His collection includes a six-minute version of Coleman Hawkins performing “Body and Soul” in the spring of 1940 and a recording of Billie Holliday singing a rubato-tempo version of “Strange Fruit” in a nightclub only a month after her original version was released.
While he was alive, Savory kept his recordings mostly to himself. He died in 2004. His son, who inherited the recordings, finally agreed last year to sell the whole Savory Collection to the National Jazz Museum.
Museum spokespeople say the museum is eager to share the songs with the public online, but because of the recordings’ murky copyright status, that’s unlikely to happen anytime soon. The performances Savory recorded are now considered “orphan works”—in other words, their copyright owners are unknown and cannot be tracked down. The museum can’t obtain permission to disseminate the recordings; and if the museum were to go ahead without permission, it would risk being hit with a copyright infringement lawsuit, meaning potentially hefty civil penalties.
In a new article in the American Bar Association Journal, attorney Steven Seidenberg takes an in depth look at the legal "No Man’s Land" in which the Savory Collection and many other works are now frozen. Because of significant changes to copyright law in 1976 and 1998, many works that would have otherwise come into the public domain can now only be used with the copyright owners’ explicit permission. Some works, including the Savory recordings, are protected by both the 1909 Copyright Act and various state laws—making attempts to find the works’ copyright owners all the more difficult.
Congress is well-aware of the orphan works gap in current copyright law. In 2006, Rep. Lamar Smith (R-Tex.) introduced legislation that would have created a copyright liability safe harbor for infringing on an orphan work if the user had made a “reasonably diligent search in good faith” to find the copyright owners before using the work. Unfortunately, Smith’s bill failed, as did a similar one introduced in 2008.
Google’s Book Search project nearly sidestepped the orphan works problem thanks to a class action settlement agreement proposed in 2009 between Google, the Authors’ Guild, and several major publishers. The agreement would have allowed Google to publish and sell orphan books on the Internet without fear of copyright infringement liability. Under the agreement, Google wouldn’t have had to try to track down individual copyright owners as long as it kept the lion’s share of revenues in escrow in case the rightsholders eventually came forward.
In March 2011, however, a federal court rejected the proposed settlement agreement, concluding that dealing with orphan works is a “matter for Congress,” rather than the courts. But not all hope is lost—Steven Seidenberg suggests that the architects of the failed Google Books settlement may have inadvertently provided a blueprint for a long-awaited congressional solution for orphan works’ publication. He quotes Pamela Samuelson of the Berkeley Center for Law & Technology:
“The approach Congress was taking before was if you can’t find the author after a diligent search, you can freely use the work; and if the author shows up, you may need to stop using the work and/or pay a reasonable license fee. […] One aspect of the Google Books settlement provides another model Congress might be willing to consider: allowing use of works that may be orphaned as long as the user pays for the use, with some of the funds used to search for the rights owner. This borrows a little from the Google Books model, but isn’t limited to just one company. When a work is an orphan it should be available for everyone to use.”
With other pressing national concerns on the political horizon, Seidenberg says it’s unlikely that Congress will address orphan works in the near term. That’s bad news for jazz fans, who currently have to make an appointment to visit the National Jazz Museum’s listening room if they want to hear William Savory’s recordings. The museum has graciously posted a few sample clips on their website, including the haunting, crackling intro of “Strange Fruit,” Holliday's disquieting musical portrayal of lynching in the American South. Above the music samples is the museum’s apologetic explanation: “There are many legal issues to be cleared before we can share any more on the web than these short bits.”