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In Jazz a lot of people play and record songs from other jazz players/composers.

For instance Mingus played a lot of songs by Duke.

My question is this: Are those songs copyrighted? Can anyone play them? I mean, can I record a song of Duke's on my album and publish it, or is it against the law?

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    Typically playing one live just requires payment of royalties. Recording onto an album usually requires permission first and agreement of terms, otherwise you may find you end up paying a significant amount, sometimes more than you earn from album sales
    – Doktor Mayhem ♦
    Dec 24 '13 at 13:15
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    Copyright violation is a costly experience. It's good for all artists to be aware of the laws, both to protect themselves and avoid accidentally (or deliberately) violating them. The laws aren't identical around the world, but the ideas are the same.
    – the Tin Man
    Dec 24 '13 at 13:40
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Complicated question, and disclaimer: I am not a lawyer

Yes they are copyrighted.

It's ok to record a song by Duke Ellington and publish the album as long as you pay the rights to whatever association manages these rights in your country. In France it is the SACEM, I believe that in the USA, the RIAA is in charge of this, and according to Wikipedia, in Greece it is GEA-GRAMMO, ΕΡΑΤΩ, ΑΠΟΛΛΩΝ. It's generally the record publisher's job to take care of this.

Note that you should also pay a fee when performing a song by Duke Ellington in public. The conditions vary from country to country, and it is typically the concert organizer's job to manage this.

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  • Yes, performance fees are typically paid by the presenting venue via their agreements with ASCAP and BMI (in the US). To collect these royalties, composers join ASCAP or BMI, known as performance rights organizations.
    – NReilingh
    Mar 17 '17 at 22:19
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    "Yes they are copyrighted": most, but not all, with the copyright of a specific piece depending on rules that vary from one jurisdiction to another. For example, Debussy and Scott Joplin both died over 70 years ago (over 100 years ago, in fact), so their work is probably in the public domain everywhere.
    – phoog
    Nov 5 '18 at 17:11
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Within the USA, If a musical composition has previously been released in recorded form, anyone may record their own version if they file a request for a compulsory license (which the copyright holder is required to grant), pay a certain fee per copy distributed (it used to be 8 cents for works up to 5 minutes, or 1.6 cents per minute for longer works, but has gone up somewhat), and abide by certain other restrictions. Most notably:

  • A compulsory license only authorizes a musician to distribute a work as a stand-alone recording, and not attach it to any sort of video or other imagery.

  • A compulsory license authorizes a musician only to perform a work without lyrics or other verbal content, or perform the work with the exact lyrics of the original. It does not authorize the use of any other lyrics or verbal content.

  • A compulsory license only authorizes a musician to perform the work essentially as written by the original composer; one may use different instrumentation from earlier recordings, and may adapt the work if necessary to accommodate that, but must preserve the essential character of the piece.

  • Any copyright interest in arrangements which are done to make the piece playable given the performer's instrumental or other limitations is automatically assigned to the copyright holder of the original work [to argue that such arrangements are themselves creative works of the performer would be to argue that one has changed the work beyond the extent permitted by the license]

There are some additional restrictions as well. If one doesn't like the standard terms, one may negotiate with a composer to seek better ones. Copyrights are often administered by agencies that impose minimum licensing requirements (e.g. they won't grant a license to distribute 5 copies for $0.50; instead it would be 500 for $50). The statute doesn't particularly authorize them to do that, but would impose enough other burdens on someone who wanted to license a piece without the cooperation of the copyright holder that it's easier to abide by such terms than try to fight them.

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  • Not all musical works are protected by copyright.
    – phoog
    Nov 5 '18 at 17:07
  • @phoog: Under US law, almost all original works which are been rendered into tangible form are automatically protected by copyright. The law can be somewhat murky with regard to improvisational works which are not rendered directly to tangible form, but are performed before an audience by one person and then later transcribed from memory by someone who had been in that audience, but in general if a piece exists in tangible form and authorship can be ascertained, the work is protected under copyright unless the author has deliberately acted to waive such protection.
    – supercat
    Nov 5 '18 at 17:29
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    "almost all original works which are been rendered into tangible form are automatically protected by copyright": this is of course correct, but copyright expires. For example, no royalties are due on a performance in the US of Gershwin's first big hit, Swanee, from 1919, or of any other musical work published before 1923.
    – phoog
    Nov 5 '18 at 17:38
  • @phoog: Fair point. I think of jazz as having mainly developed after the copyright cutoff, but you're right that some jazz works predate that, and some others have copyrights that were not renewed. In any case, my main point was that musicians are generally allowed to produce and sell recordings of their performances, even when the works being performed are covered by copyright.
    – supercat
    Nov 5 '18 at 19:31
  • Indeed. The compulsory license is not as widely known as it should be. But in addition to early jazz works I would also call attention to pieces that were written long before jazz was even a twinkle in anyone's eye that have nonetheless become classics of jazz repertoire, Chopin's Prelude in E-minor (composed in 1839, author's death in 1849) being a prominent example, and there are jazz versions of other famous classical pieces to be found, as well as of traditional songs. One of the great things about jazz is its ability to draw on a wide variety of source material.
    – phoog
    Nov 5 '18 at 20:43

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