Copyrighting an Arrangement of a Public Domain Song

Copyrighting an Arrangement of a Public Domain SongPart 10 in Cary Ginell’s “Ransacking the Public Domain” series

In searching for new material to record, many composers look to a public domain song for inspiration. The usual process is to take a traditional song, such as “Yankee Doodle,” and make your own arrangement of it, thus claiming an arranging copyright. But some composers claim a copyright for the song as if it were a new work. So how do you tell the difference and what do you have to do in order to claim a full copyright based on a traditional source?

Let’s look at an example from popular music history – the song “Gotta Travel On,” as recorded by Billy Grammer. Grammer’s record, which was made for the Monument record company in 1959, became a crossover hit, charting in the top ten on the country-western (No. 5) as well as the pop (No. 4) charts. The song was copyrighted by Paul Clayton (1931-1967), a folksinger and folklorist prominent during the so-called “urban folk revival” of the late 1950s and early 1960s.

“Gotta Travel On” was based on a musical tradition dating back nearly a hundred years. One of the earliest ancestors of the song is a prison number collected by Carl Sandburg at the Kentucky penitentiary in Frankfort during the 1920s. The song, titled “Yonder Comes the High Sheriff,” tells of an escaped convict who is being pursued by law enforcement officers. The lyrics state:

Yonder comes the high sheriff, ridin’ after me

Ridin’ after me, yes, ridin’ after me

Yonder comes the high sheriff, ridin’ after me

O it’s captain, I don’t want to go.

In addition to the prison song, there is a sacred tradition that goes along with this melody as well. The common title for this tradition is “Do Lord Remember Me,” which bears a similar melody but different lyrics.

Do Lord, do Lord, do remember me

Do Lord, do Lord, do remember me

Do Lord, do Lord, do remember me

Do Lord remember me

There are other traditions that sprang from this common melody and chord structure, including the Monroe Brothers’ “My Long Journey Home,” recorded during the 1930s.

Paul Clayton was well aware of this tradition when he wrote “Gotta Travel On” in 1959. In doing so, Clayton knew that in order to claim a copyright on the song, he needed to make substantial changes to the melody as well as to the words, so that the composition would be uniquely his. His new work, which was successfully recorded by Grammer, changed the song’s lyrics to a “wandering” theme, utilizing the following words for the chorus.

I’ve laid around and played around this ol’ town too long

Summer’s come and gone, yes, winter’s goin’ on

Done laid around and stayed around this ol’ town too long

And I feel like I’ve gotta travel on

A key element to Clayton’s change is inventing a new resolving melody for the fourth line of the chorus, which was significantly different from the P.D. version for him to claim a copyright on the composition, even though one of the verses remained similar to the original “High Sheriff” lyrics:

High sheriff and po-lice comin’ after me

Ridin’ after me, yes, comin’ after me

High sheriff and po-lice ridin’ after me

And I feel like I’ve gotta travel on

In Woods v. Bourne, the publisher Bourne & Co. proved that published versions of the song “When the Red, Red Robin Comes Bob, Bob, Bobbin’ Along” were not sufficiently unique to warrant claims of a derivative copyright. The Second Circuit summarized its findings by saying, “[S]omething of substance [must be] added making the piece to some extent a new work with the old song embedded in it but from which the new has developed. It is not merely a stylized version of the original song where a major artist may take liberties with the lyrics or the tempo, the listener hearing basically the original tune. … [C]ocktail pianist variations of the piece that are standard fare in the music trade by any competent musician [do not suffice].”

What this means is that composers seeking to utilize public domain material as a basis for their own copyrighted works have the burden of creating a substantially new work using the traditional melody as a framework, but cannot blindly copy the original without making such changes.

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