Re: kandelikas--and "losing the composer"

[Joel Bresler <joel.br...>]

At 06:46 PM 11/5/2002 +0000, you (Robert Cohen) wrote:
>>But I AM surprised at the discussion of how much was new material. 
>>Clearly, it was BASED on the idea of Flory's song and the title she gave 
>>it, and form the line "traditional" on the web site extract, and form 
>>Josh's own comment that they didn't know it was by Flory at first (many 
>>people don't know this: a tribute to Flory's song-writing and knowledge 
>>of her tradition). That means she is entitled to the royalties anyway. If 
>>she chooses to waive this right, that's fine, they should simply (as I 
>>understand things) automatically go to her anyway.
>
>I'm puzzled by Judith's remarks above.
>
>That Flory Jagoda's song is now often regarded as "traditional" is indeed 
>a tribute to her connection to and instincts for her people's music.  Her 
>song has, to a degree, "lost its composer"--which happens often with folk 
>and folk-style music. (Two Jewish examples [in addition to many or *most* 
>Shlomo melodies and, now, some Debbie Friedman ones and others]:  Israel 
>Goldfarb's "Shalom Aleichem" and Mark Warshawsky's "Oyfn 
>Pripitchek"--which had apparently "lost its composer" within weeks or 
>months of  being composed, so "traditional" did it sound like, or feel; 
>and there are many American examples, including of contemporary American 
>songs--I cherish one in which a singer-songwriter sang his own song *to 
>the group of working people from which similar songs are generated*; 
>*they* assumed it was "traditional"--and, I'm sure, there are many 
>examples in other cultures as well.)
>
>And I most certainly agree that everyone who has been a source or 
>inspiration of one's work should be credited--parallel to the Talmud's 
>dictum that to cite a teaching in the name of the one you learned it from 
>helps bring redemption to the world.*
>
>But you can't copyright an idea *or* a title (cf. Judith:  "Clearly, it 
>was BASED on the idea of Flory's song and the title she gave it"), so I'm 
>quite confused as to what royalties Judith feels Flory is entitled to.
>
>Perhaps she and/or others could clarify?
>
>--Robert Cohen
>
><snip>


Hi, Robert. I'll take one more run at the topic, since I'm learning 
something from the discussion and enjoying it. Also, I'm glad that both 
Flory Jagoda and the band members have shown a graciousness and great 
attitude that seems sadly lacking in the music business today. But as for 
whether Flory is entitled to royalties, I am not a lawyer, but I'd say yes.

1)      You're right that a song title can't be copyrighted. But if a 
performer/songwriter gives a new song the same name as another well known 
song, and some of their lyrics or melody are the same as the lyrics or 
melody of the original, that would point to it being based on, if not the 
same song as, the original. Looking at another holiday standard penned by 
another Jewish author, I have to imagine that if I did a song called "White 
Christmas" beginning with the lyrics, "I'm dreaming of a White Christmas", 
I'd be hearing from the Irving Berlin Music Co.

2)      The band indicated to both media interviewers and in private 
correspondence that there version was "based on" or a "rendition of" Ocho 
Kandelikas.

http://www.forward.com/issues/2002/02.06.14/fast3.html

"Ocho Kandelistas" (sic) is based on a Ladino folksong that Noriega's 
father used to sing to him when he was a boy.

---

>From: Hip Hop Hoodios <loshoodios (at) yahoo(dot)com>

<snip>

>we did a rendition of "Ocho Kandelikas" (not that I was ever aware it was 
>her (Jagoda's) song when we recorded it).

So I'd say that Flory is entitled to royalties. I think it's possible to 
turn around and argue the opposite, based on the Supreme Court's finding in 
Campbell v. Acuff-Rose Music, Inc. (1994). A synopsis, from 
http://law.vanderbilt.edu/alumni/lawyer/feature3.html

>The most common type of copyright infringement occurs where a commercially 
>available song is, or seems to be, very similar to another preexisting 
>song. In order to sue for infringement here, the original writer must show 
>three things: (1) ownership of the song infringed upon, (2) the infringer 
>had "access" to the original song, and (3) "substantial similarity" 
>between the two works.
>
>
>The leading case in this area, Campbell v. Acuff-Rose Music, Inc. (1994), 
>ensures that the confusion will continue. In Campbell, the Supreme Court 
>held that one must consider a number of factors in a fair use case, 
>including the nature of the original work, the amount of copyrighted 
>material used, and the possible effect of the parody on the market for the 
>original.
>
><snip>
>
>Campbell involved a parody of the classic rock song "Oh Pretty Woman." Rap 
>group 2 Live Crew's "Pretty Woman" took the bass riff of the original and 
>added lyrics such as "big hairy woman," "bald-headed woman," and 
>"two-timin' woman." There was no question that 2 Live Crew's song took 
>substantial parts of Roy Orbison's creation, but it seemed clear that the 
>rap group was making an ironic or humorous comment.

Flory owns the song, the (possible?) infringers certainly knew the song, 
and so the argument would hinge on whether there were "substantial 
similarity" between the works, how much of the copyrighted material was 
used, and the (admittedly small) effect of the parody (if that's what this 
is deemed to be) on the market for Flory's original.

Last interesting sidelight: though it's not easy to tell in a heavy metal 
version, the band appears to be counting in Spanish, not Ladino. At least, 
to these ears it sounded like "cinco", not "sintyu" and  "seis", not "seysh."

Best,

Joel




Joel Bresler
250 E. Emerson Rd.
Lexington, MA 02420 USA

Home Office:    781-862-4104
Email:          joel(dot)br (at) verizon(dot)net

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