Suppose you’re the Coen brothers and you’re starting to edit your new film. You’ve scripted your whole movie around what you believe are traditional folk songs (“Man of Constant Sorrow,” for instance). And suddenly it hits you . . . what if these songs (billed as “traditional” on the disks you’ve been using) are actually . . . copyrighted?
High anxiety! Who you gonna call?
You’re gonna call a forensic musicologist—someone so drenched in knowledge of music and music copyright that he (or she) can find the answers to some pretty thorny questions about what is traditional, what is not, and whom to credit if it is an arrangement of a traditional song. In this case, the brothers, called Sandy Wilbur, a New Yorker who counts herself among only five or so full-time forensic musicologists in the country.
Sandy’s job for the Coens was to be sure O Brother, Where Art Thou? had no music copyright problems. To do that, she had to be able to prove that the songs were either traditional (free of copyright or in the public domain), published—and by whom—or correctly credited to whoever did that arrangement of a traditional song. And doing that required months of listening to field recordings from the library of congress. Field recordings, or folk songs collected in the countryside by John Lomax and his son Alan Lomax while they each worked for the library of Congress, are considered in the public domain. “We found public-domain versions of some of the songs the Coens wanted to use,” Sandy says. “But ‘Man of Constant Sorrow’? The only version of this song I found that wasn’t copyrighted was completely different from the one we all know from the ‘60s, so that was the one we used. Sandy found a field recording that was almost identical to the opening pickaxe chant—but not close enough, so the Coens negotiated with the publisher to be allowed to use the one they’d already recorded. The publisher of some of the songs in the film was none other than Alan Lomax, who collected and published additional songs after he left the Library of Congress.”
It took her a year and a half to complete the O Brother research. And, she points out, “Because it became a big deal—a Grammy-winning soundtrack— the fact that there have been no legal claims against any of the songs tells you how important the research was.” It turned out there were a number of songs that had been “published” for years that were really in the public domain, and others that everyone assumed were traditional but were not. The life of songs can take many surprising turns!
What is musical plagiarism? Is a particular number of notes, strung in a certain order, the giveaway? Sandy says no; it’s more complicated than that. (Indeed, even public-domain songs trigger complications. “Remember, you can copyright the arrangement of a traditional song,” Sandy points out. “So the question is, if the Carter family has added a verse to a traditional song, or an arrangement you want to use, they have rights to that version and should be credited. Then, as now, all songs published before 1923 are in the public domain in the U.S., but not necessarily elsewhere. So using a song on the Internet, for instance, is a worldwide use and is governed by often changing copyright laws in each country.”
People have even been known to sue for plagiarism over riffs, a repeating instrumental pattern beneath the melody. (Sandy’s research, calling on the help of guitar players all over the country, got a recent such case dismissed.) And a singer can “own” a particular sound. “If you’re accused of sounding too much like Beyoncé, you should be worried,” Sandy notes.
Litigiousness has increased dramatically in the last few years. “People think, ‘I’m going to win the lottery!’” Sandy says. To prove infringement, she and her fellow experts look for this pattern: (1) evidence that the defendant actually had access to the song, and (2) evidence that the two pieces of music are substantially similar. This requires analysis of the similar elements and music facts in the two works.
No longer can fledglings send their unsolicited tapes or scores to music companies, as they used to. Caution makes many companies return submissions unopened. In one case it was Sandy’s job to discover whether it was likely that a music company had come in contact with a particular song. The writer, she found, had put the song up on MySpace—and it had a total of 30 views. This was too puny a number, the plaintiff’s attorney conceded, to make it probable that the song had reached the ears of the composer of the other song.
To win a case, a plaintiff must also prove that (1) he has the copyright and (2) his song has protectable elements that have been copied. If, for instance, a similar melody is found in earlier works that predate both in question (called prior art), then that would prove the similar melodies are not unique. Most melodies aren’t. “I’ve declared a ‘striking similarity’ [meaning the similar elements in the defendant’s work could have come only from the plaintiff’s work) only twice in 25 years,” Sandy says.
She accepts cases cautiously. When a litigant’s lawyer first calls her, she won’t let him tell her which side he’s representing. “I just say, ‘Send me both works, and I’ll tell you what I think.” She’ll do preliminary research, which includes transposing both songs into the same key, then call the lawyer and give him her opinion. If it’s a tricky decision, she’ll consult other experts.
If her opinion happens to agree with that of the lawyer who called her, she’ll take the case: “I testify in court only on cases I believe in.”
And what’s it like to testify? “Absolutely grueling,” she says. “Cross-examination can be very unpleasant. I testified recently in a Texas case about Tejano songs—songs of the Mexican border.”
The creative and joyful part of Sandy’s workday is the part where she gets to write the music. Trained as a classical pianist, she has recorded more than 40 songs and “hundreds” of jingles. (She will soon be releasing—on www.sandywilburmusic.com and on iTunes), a new album of lullabies, Goodnight, My Honey Bunnies—some traditional and some original.) And in the last few years she’s written and produced three stirring anthems for use in elementary and middle schools—music that can’t help but trigger an old-fashioned pride in American history. Her subjects: the Preamble to the Constitution (“We the People), the Statue of Liberty (“She Still Carries a Torch”), and the Gettysburg Address (“Four Score . . .”)
They feature an adorable quartet of Vermont schoolgirls and a rapper, two years older, from a school in Cambridge, New York. Sandy found the girls Hollywood style —at the last minute, at a school whose singers she wasn’t even considering. Contacted on her way to another school, she told the teacher she’d give them “20 minutes.” Three members of a talented quartet were present, two with bad colds; the other had sent a tape. Sandy was told that since the girls were close friends, she could either take one of them or take all of them. “I had no choice,” she says, “so I took them all.” See and hear them as third graders (the Preamble), fourth graders (the Statue), and fifth graders (the Gettysburg Address). The children opened two sessions of the Vermont legislature singing “We the People” and “Four Score” to standing ovations. Both can be found on YouTube.
Sandy Wilbur and the cast of “We the People”
“The first time we got together, you’d think they were going to American Idol, they were so thrilled. They’d never been in a studio before; they had no idea what to expect. But by the end of the first session they were pros . . . and stars,” Sandy says.
Teaching history through music—a satisfying mission. Sandy’s musical settings are being sung in “hundreds of classrooms all across the country,” with more and more music teachers downloading the music from Sandy’s website, www.sandywilburmusic.com. “I’ve been very fortunate to have worn so many hats in the music business. The forensic musicology is both interesting and challenging, but I am and have always been a songwriter and producer,” she says. “That’s still where my heart is.”