Folk Music, Copyrighted Traditions - Folk Week


By Brian Fencil and Alexa Hornbeck

Photo courtesy of Wikimedia Commons.

Folk music simultaneously embraces tradition and personal expression; like a call and response between musicians across place and also time. Folk songs were–and are–passed from one to another, then recalled from faded memories and played back through a different voice.

With each rendition a song changes, however, the copyright laws designed to protect artists’ creations, go strongly against folk traditions, barring the sharing and modifying practices that have been an integral part of folk music throughout history.


A copyright is a way of protecting intellectual property. It gives the creator of the work the ability to control its use by restricting its sharing, spread, and use by other people. Copyright protection covers any work once it is created into a tangible form, such as a written or recorded song (registering a work with the US Copyright Office is not required but it puts the copyright on public record). When the term of copyright protection ends, works enter into public domain, and can then be used publicly by anyone.

Copyright laws appear transparent, but when applied to folk music the waters become murky. Because many new folk songs are inspired by the same public domain, it can be difficult to determine if a derivative song was galvanized from a copyrighted song or public domain song.

In 1963, The Kingston Trio recorded a version of a song they thought was public domain, “Tom Dooley”, which is based on an 1866 murder committed by Tom Dula. However, in 1938 Frank Proffitt, a North Carolinian farmer, taught the song to music collectors Anne and Frank Warner, who published an adaptation of it in Folk Songs USA.

In the late ‘50s The Kingston Trio recorded an arrangement of “Tom Dooley” and didn’t credit Warner or Proffitt. After 3 million copies of their song sold, they were sued for copyright infringement. Testimony during the trial showed that The Kingston Trio had based their version of the song from Warner’s copyrighted version and not the public domain version. Royalties earned from the trio on the song are still being paid to heirs of Frank Warner.

Their story highlights the problem of copyright laws and divergent evolution in folk music. To circumvent this problem cross-genre, several Berkley students in the ‘70s ignored the system of copyright and created the most famous jazz and blues fake book called, The Real Book. The book’s creation was an embracing of old music ownership philosophies and a rebellion against the more static creation of music copyright laws support.

The Real Book

At the Carl Fischer Music Store on the Lower East Side of Manhattan, pop, jazz, Latin, rock, country, and classical fake books fill several shelves. All brag about their size: The Greatest Legal Fake Book of All Times offers 1,225 songs, This Is the Ultimate Fake Book, 1,200. However, you won’t find The Real Book at Carl Fischer because it violates copyright laws.

“It rips off composers and publishers, [and it] teaches young musicians that stealing is okay,” Chuck Sher, who publishes the legal New Real Book Volumes I and II, tells BTR. Fake books, legal ones, give about 12 percent of the profit to the artists who wrote the book’s songs. It is not known how many copies The Real Book sold, so it is impossible to tell how much money the book’s artists were denied.

By not paying royalties the authors of The Real Book, either intentionally or unintentionally, took a powerful stance on the ideas of ownership of music, and a stance based on folk tradition. By pirating the songs and circulating the book among musicians like samizdat material—not unlike how listeners did decades later with illegal filesharing sites—the creators argued that a folk-based format like jazz standards should be a shared commodity, and there is some evidence for their argument. Seeger, without any condemnation for the practice, once said that “The folk-song is, by definition… entirely a product of plagiarism.”

Much of folk music, and to some extent jazz as well, was built through a slow and communal process. Songs changed as they switched hands and it is difficult to grant credit to a single musician for some songs.

Variation is an important characteristic of folk music and The Real Book encouraged its ethos. Because folk players improvise chords as well as melodies, either adding color tones like flat ninths or simplifying chord sequences to make the music swing, a fake-book editor must decide how much to stick to the sheet music chords and how much to suggest alterations.

The Real Book struck a reliable balance, indicating the basic chords and pointing out more imaginative chords in parentheses. It is this variation that makes folk a living tradition permeating multiple formats instead of merely an antiquated genre.

Although The Real Book harks back to old theologies and encourages the sharing and improvisation that made folk music, sacrificing the rights of the musician do not serve the genre. Law must protect the artist and their work, and yet, copyright laws must not hinder the culture of folk music.

In the current state of the music industry, new artists who are inspired by public domain songs and try to share their version of the song publicly must navigate a legal mine field. Straying too closely to a copyrighted song could set off an explosion of litigation that could last for decades, which is in itself some sign of success. Fear of criminal action could prevent new artists from post-modern ideas involving dated songs being reimagined in new ways, letting these relics of the past drift into obscurity.

The World Intellectual Property Organization (WIPO) has been working for decades to solve this problem. In 1997, the WIPO asserted that, since folklore is part of traditional heritage that “it would not be appropriate to leave its protection to some individuals,” as current copyrights do. They seek to find a balance between protecting creators while encouraging sharing. “Borrowing from and inspiration are permitted, adaptation and copying are not. Distinguishing between them is not always easy.”

For the spirit and sense of invention in music that comes from folk to thrive, we must allow for the sharing and collaboration of old ideas while protecting new contributions artists are making to established forms. Currently, copyright laws are throwing up barriers between new musicians and us, as well as our collective past. From Woody Guthrie to The Real Book to BitTorrent, the tug of war between the right for an artist to protect their works, and the right of the public to access traditional material proves that inevitably, concepts of ‘ownership’ in mass media only move in one direction.