the living art of storytelling in Massachusetts
Volume 29 Spring-Summer 2003 Voices New York Folklore Society
Folklore is often an iterative process: stories morph as they are told and retold and as they filter through different cultures. The process comes to a grinding halt if every time someone tweaks a story, the tweaks are copyrighted and declared off-limits to everybody else for a hundred years or so.
Paul Rapp is an attorney with the Albany law firm of Cohen Dax & Koenig. He also teaches art and entertainment law at Albany Law School. Write to him or the editor of Voices if you have a general-interest question or topic you’d like to see discussed in a future issue.
Buck Malen New York Folklore Society firstname.lastname@example.org
Unfair Use of Folklore
Lawyer's Sidebar What happens when somebody copyrights a version of an old folktale? Is the folktale taken out of circulation for everybody else for the duration of the copyright (which, thanks to our Congress and Supreme Court, is now basically forever)? Disney, which made films of numerous folk and old tales (Cinderella, Snow White, Pinocchio), has been accused of doing precisely that, since the company holds copyrights granted in the mid-twentieth century that are now going to last until well after 2020.
But Disney hasn’t stolen Snow White. When someone creates a new version of a folktale or anything that is in the public domain, the new version does carry a copyright, but this copyright does not cover the new version in its entirety. The only things protected by the copyright are the new parts of the folktale—the embellishments, the additions. Everything that existed before the new version was made remains in the public domain, for all to use.
So Disney has a claim to the visual aspects of the characters, the songs, and perhaps the exact wording and sequences of certain events in its animations. But anyone can still tell the Snow White story; anyone can make another animated film of Pinocchio, so long as the new work doesn’t take any of the protected parts of the Disney film. Don’t have dwarfs singing "Hi-ho! Hi-ho!" unless you want to be paid a visit by Disney’s attorneys.
A few years ago a pair of professional storytellers came to me because they wanted to retell what they knew to be an ancient West African story. However, the only version they could find was in a children’s book that carried the author’s copyright notice. They weren’t sure what parts of the story were traditional and what parts might have been added by the author of the book. They planned to make their own adaptation of the story, but they knew that embellishing a copyrighted work is as much infringement as copying the work verbatim. And they’d tried to contact the author, without success.
What should they do?
My job is not only to tell my clients what the law is, but also to help them accomplish what they seek to do. I often find myself saying, "Maybe it’s infringement, but go ahead and use it anyway."
And that’s what I told the storytellers. I didn’t think that there was much likelihood of their getting into any trouble for adapting the copyrighted version of the African folktale. First, the author (or the publisher) of that version would have to find out about the storytellers’ use. Then the author would have to determine that the storytellers were using the protected portions of her version (if indeed there were any), which means she would not just have to hear about the storytellers, but have to hear them, in person or on the radio or on a recording. Next, the author would have to be upset enough about the storytellers’ use to want to do something about it.
Perhaps the author wasn’t claiming any ownership rights for the version of the story in her book. The author’s copyright notice might have been relevant to other stories in the book, or to the arrangement of the stories, the introductions, and the illustrations. The author might be more concerned about someone taking the entire book than about professional storytellers’ using her version of just one story. Or she might be a fervent folklorist herself, disinclined to go after fellow folklorists for carrying on the tradition.
For her to call her lawyers and pay for their time, she would have to consider how much damage the storytellers were causing. Something between slim and none? Even in the worst case, the storytellers would receive a stiff and formal letter concerning exclusive rights, statutory damages, ceasing, desisting, blah, blah, and blah. Such a letter would mean it was time to stop using the African story. Only if the storytellers were making a fortune on this story (selling movie rights to Spielberg, perhaps, or licensing a line of action figures) would there likely be a serious legal issue.
Folktales cannot be plucked out of general circulation by a simple copyright. However, copyrights do wreak havoc on the folklore process. Folklore is often an iterative process: stories morph as they are told and retold and as they filter through different cultures. The process comes to a grinding halt if every time someone tweaks a story, the tweaks are copyrighted and declared off-limits to everybody else for a hundred years or so. Disney took the Snow White story and did the definitive version of it. Should they own this version, maybe the only version that matters, for ninety-five years? Why should my storytellers go through conniptions over the telling of a particular version of an African story that is at least eight hundred years old? Should anyone own any version of these stories?
Disney would say (and actually has said, ad nauseum) that the ninety-five years of exclusivity provides the financial incentive to make Snow White and Pinocchio in the first place. Although there is some truth to this, the failure to recognize the folk tradition in the current scheme of things constitutes a lack of balance. Should there be a folklore exception in the copyright law? Perhaps a shorter copyright period for works derived from public domain material, or maybe some type of folklore "fair use" exception? Unfortunately, such changes would require an act of Congress, and as recent events have shown, on copyright matters Congress listens to Disney. Hi-ho! Hi-ho!
Paul Rapp’s Lawyer's Sidebar column was published in Voices Vol. 29, Spring-Summer 2003. Voices is the membership magazine of the New York Folklore Society. To become a subscriber, join the New York Folklore Society now.
Art for Community’s Sake [one component of a larger folk arts exhibit] addresses how folk artists and their communities look at themselves. In the worlds of most artists, work is measured by its purpose—how it will serve the artist, his or her family, or the life of the community—and by its worth—not necessarily in money, but as an expression of the group’s values and tastes. While the values explored in the exhibit are not mutually exclusive, they do represent various "windows" through which we can examine groups and individual artists who represent them. These values include:
* Keeping Traditions Alive: Some artists and their communities place high value on adhering to family or group traditions, preserving them—and the way of life they represent—for the next generation. The processes, tools, materials, designs, motifs, as well as functions, are closely followed. As time passes, some changes may occur, but the pursuit of tradition as a symbol remains important.
* Making it Useful: Some artists and their communities place high value on the usefulness of the objects they create. The design, materials, and execution all contribute to its function, an important aspect of the "aesthetic" in such things as folk furniture, utensils, and crafts. The look of durability and the object’s ability to stand up to its intended use are important goals of the artist.
* Keeping Connected: Reinforcing a close identification with a group to which they currently belong is the ambition of many folk artists. They use forms, designs, colors, and motifs which clearly associate them and their work to others with a shared heritage. They may create objects for use by members of the group or to sustain outsiders' views of the group and its traditions.
* Re-creating Memories: An artist’s ability to recreate memories of shared group experiences is often personal but highly desired and encouraged by his or her group. Great emphasis is placed on precise detail and the object's ability to capture a complete scene or event.
* Sustaining the Spirit: Some artists place great value on objects that are used as integral parts of religious ritual or that hold special religious meaning for the audience. In creating these objects, the artists choose forms and images that are clearly associated with particular religious traditions.
* Being Creative: The ability to innovate within tradition is an attribute strongly admired in the shared group expressions of some folk communities. An artist may experiment with forms, materials, and designs in response either to personal choices or to changing cultural influences in his or her life. Resourceful use of found or recycled materials is a challenge many contemporary folk artists relish."
—Varick Chittenden, Exhibit Curator. From the brochure of the folk arts exhibition, Out of the Ordinary produced by Gallery Association of New York State (1995).
In sum, folklore is artistic communication in small groups."—Dan Ben-Amos
RESOURCES | WHAT IS FOLKLORE?
Folklore and folklife (including traditional arts, belief, traditional ways of work and leisure, adornment and celebrations) are cultural ways in which a group maintains and passes on a shared way of life.
This “group identity” may be defined by age, gender, ethnicity, avocation, region, occupation, religion, socioeconomic niche, or any other basis of association. As New York folklorist Ben Botkin wrote in 1938,
Every group bound together or by common interests and purposes, whether educated or uneducated, rural or urban, possesses a body of traditions which may be called its folklore. Into these traditions enter many elements, individual, popular, and even "literary," but all are absorbed and assimilated through repetition and variation into a pattern which has value and continuity for the group as a whole.
These traditional forms of knowledge are learned informally within a one-to-one or small group exchange, through performance, or by example. In all cases, folklore and folklife are learned and perpetuated within the context of the "group," for it is the shared experience which shapes and gives meaning to the exchange.
—Ellen McHale, "Fundamentals of Folklore," in John Suter, ed., Working with Folk Materials in New York State: A Manual for Folklorists and Archivists (Ithaca, NY: New York Folklore Society, 1994), p. 2.1
While folklore is private and intimately shared by groups in informal settings, it is also the most public of activities when used by groups to symbolize their identity to themselves and others.
—Robert Baron and Nicholas Spitzer, Public Folklore (Washington and London: Smithsonian Institution Press, 1992), pp.1-2.
For an individual family, folklore is its creative expression of a common past. As raw experiences are transformed into family stories, expressions, and photos, they are codified in forms which can be easily recalled, retold, and enjoyed. Their drama and beauty are heightened, and the family’s past becomes accessible as it is reshaped according to its needs and desires.
—Steve Zeitlin, A Celebration of American Family Folklore (Cambridge, MA: Yellow Moon Press, 1982), p. 2.
Folklore, like any other discipline, has no justification except as it enables us to better understand ourselves and others.
—Roger D. Abrahams, Journal of American Folklore 81: 157 (1968).
For those who find brief definitions helpful, there is no dearth of contemporary formulations: “Materials...that circulate traditionally among members of any group in different versions, whether in oral form or by means of customary example” (Brunvand, in The Study of American Folklore: An Introduction, 1968); “The hidden submerged culture lying behind the shadow of official civilization” (Dorson, in Folklore Forum1, 1968); “Artistic communication in small groups” (Ben-Amos, in Journal of American Folklore, 1971); “Communicative processes [and] forms ... which evidence continuities and consistencies in human thought and behavior through time or space” (Georges, in Sound Archives: A Guide to Their Establishment and Development, 1983)
—Elliott Oring, “On the Concepts of Folklore,” in Oring, ed. Folk Groups and Folklore Genres: An Introduction (Logan, UT: Utah State University Press, 1986), p. 17.
This book is founded on the simple assumption that there must be some element all folklore has in common (else we could not lump it all together). No doubt an astute student could name several possible unifying characteristics, but I have chosen one: All folklore participates in a distinctive, dynamic process (p.10)
Folklore comes early and stays late in the lives of all of us. In spite of the combined forces of technology, science, television, religion, urbanization, and creeping literacy, we prefer our close personal associations as the basis for learning about life and transmitting important observations and expressions. (p.25)
Actually, folklore is a word very much like culture; it represents a tremendous spectrum of human expression that can be studied in a number of ways and for a number of reasons. Its primary characteristic is that its ingredients seem to come directly from dynamic interactions among human beings in communal-traditional performance contexts rather than through the rigid lines and fossilized structures of technical instruction or bureaucratized education, or through the relatively stable channels of the classical traditions. (p.28-29)
—Barre Toelken, The Dynamics of Folklore (Boston: Houghton Mifflin, 1979)