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In 1969 I received a surprising call from Nathan Joseph, boss of the small but influential British independent record company, Transatlantic. He wanted to know if I was willing to appear as an “expert witness” in a legal action he was planning to take against Peter Grant, the notoriously thuggish manager of the Led Zeppelin rock group, for breach of copyright.
He maintained that Black Mountainside, an acoustic guitar feature from Jimmy Page on Zeppelin's first album, was a note-for-note copy of Black Waterside, recorded by Transatlantic guitarist and singer-songwriter, Bert Jansch, on his third album, Jack Orion. I'd reviewed the album enthusiastically for Melody Maker, applauding its blend of contemporary guitar accompaniments and traditional lyric:
But I had also written at length on the objectionable practice of attempting to copyright folk songs, which Black Waterside was, undoubtedly. In my view, they should all be considered in the public domain. The entire area of folksong copyright was a veritable can of worms. There had been notorious instances of this, few of which had actually come into the courts with any measure of success: the way Chas McDevitt had turned Freight Train, which he had learned from Peggy Seeger, who had heard it from her nurse, Libba Cotten, when a child, into a monster hit, retaining all the royalties without a penny going to either Ms Seeger or Ms Cotten (or not until M'Learned Friends became involved); the way Paul Simon had borrowed Martin Carthy's ostinato guitar riff for Scarborough Fair, and turned it into another money-maker, especially when Parsley, Sage, Rosemary and Thyme (as he called it) was used on the soundtrack of Mike Nichols' 1967 movie, The Graduate; the way, when Ewan MacColl refused to copyright his mother's version of Lord Randall when he recorded it, it was then recorded by the Spinners folk group, who finding it unprotected, promptly copyrighted it themselves, so not only did they get the royalties from their own version, but also grabbed any monies from Ewan's own recording of his mother's song.
I had tried to persuade Norman Buchan, MP, when he was responsible for cultural matters in the Labour Government, to investigate the possibility of new legislation which would pay all royalties from traditional music into a central fund, to be shared between the efforts of folksong collectors – mostly engaged in a thankless and often far from cost-effective labour of love – and their informants. Buchan had been a pioneer of the Scottish folk revival when he was a humble teacher at the Rutherglen Academy, and he knew more about folk music than most politicians.
As it stood, copyright was a creation of the age of print, and it took no cognisance of oral folk culture. So if a singer sang a song that had been in the family for generations to a collector who wrote it down, then the act of scribbling it into a notebook created the copyright – not for the informant, but for the collector. If, using more modern technology than the notebook which had been Cecil Sharp's preferred method, the collector used a sound recorder, then the copyright in that recording but not in the song would belong to that collector, not the singer nor the singer's family. If someone else played the recording, and transcribed it on to paper, then that act conferred copyright on that third party, clearly a nonsense.
Sharp himself gave his view in 1907:
Buchan organised some meetings at the House of Commons to work out a procedure that would be acceptable to all interested parties, but it foundered upon the opposition of Novello & Co, the music publishers (now part of EMI Music and, incidentally, publishers of my own songwriting efforts), who were unwilling to part with their own copyrights, which had been attached to the over four thousand songs Cecil Sharp had collected in England and America. Then Buchan died, a sad loss to music and left-wing politics, and the efforts to introduce some rationality into the business petered out.
So who owned Black Waterside? The version sung by Bert Jansch and, before him, by Annie Briggs, had been taught her by Albert Lancaster Lloyd, genial eminence rouge behind the folk revival in Britain. Lloyd had presumably learnt it from the recordings Peter Kennedy and Sean O'Boyle had made of Paddy and Mary Doran, two Irish tinkers, in 1952 (the man and his wife sang completely different melodies to essentially the same set of words).
But Kennedy was an employee of the English Folk Dance & Song Society at that time, on secondment to the BBC. Did the recordings he made belong to him, the BBC, or the EFDSS? No doubt all three would maintain their rights. In the recordings, that is, not of the song's text and melody. Kennedy published words and music of a version he and O'Boyle recorded from Winnie Ryan of Belfast, in his Folksongs of Britain & Ireland (Cassell, 1975), the title page of which carries the legend: “Text © Copyright Peter Kennedy, 1975, Music © Copyright Folktracks and Soundpost Publications.” But since it says, also, “Musical transcriptions and guitar chords by Raymond Parry”, then surely the music is Mr Parry's copyright.
Also, the BBC recorded the Dorans at the Puck Fair in Killorglin, Co. Kerry, five years earlier. So perhaps that earlier recording established the BBC's rights, prior to Peter Kennedy's.
Cecil Sharp noted a version from a Mrs Overd in Hambridge, Somerset, in 1904. Versions were printed by Frank Kidson in 1891 and 1927, and others have appeared in print dating back to 1787. Sharp collected three versions in Virginia and North Carolina, USA, in 1917, and the song has also appeared in Baltimore and Canada.
Back to Bert Jansch and Black Waterside. His tuning was actually DADGBE, ie normal guitar tuning with the bottom E dropped to D. So however like his version Jimmy Page sounded to the untutored ear of the audiences for both, it was actually quite different.
This was the situation confronted by John Mummery, QC, an eminent barrister specialising in copyright, when he was briefed by Transatlantic's Nathan Joseph.
Colin Harper quotes Joseph: “What Mr Mummery advised was that whereas there was a distinct possibility that Bert might win an action against Page, there was also the possibility that all sorts of other people might then say, 'Ah, but Bert heard it from me.' Given the enormous costs involved in pursuing an action, and the thought that one could be litigating, or being litigated against, for the next twenty years on the basis that everybody and his dog would claim Blackwater Side or Mountain Side or any other kind of side, we left it at that. As the 'writer', Bert would have had to share the costs with us fifty/fifty - and they were not the sort of costs that we could afford, let alone Bert. But in many ways it was a very interesting case. If you think about it, almost any “traditional” song that somebody does an arrangement of, somebody will have done something vaguely similar before. The difficulty appears to be one of really establishing, amongst hundreds of arrangers, who it was that made the arrangement 'original'.”
And so I was not called as an expert witness after all. But the bizarre sequence of circumstances that led from an Irish tinker's camp in 1952 to a possible legal precedent of great significance in what had now become a multi-million-dollar popular music industry, in which the songs of unlettered folk become the subject of high-powered legal briefs, is a story that begins, not in 1952, but half a century earlier, when the Royal Family's music teacher saw something remarkable when peering out of a vicarage window.
Introductory chapter to an unpublished history of the folk revival.
Other chapters can be seen HERE.
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