Monday, May 13, 2013

Bob Dylan, Hootie and Derivative Works

I can admit that I am a hypocrite.  I hated that Darius Rucker song “Wagon Wheel” until I learned that Bob Dylan co-wrote it.  Actually, I still don’t like the song much but I was intrigued with the story behind the song.  According to different sources, Dylan created the work as an outtake from the recording sessions for the soundtrack to Pat Garrett and Billy the Kid in 1973.  Dylan expert Clinton Heylin titled the song as “Rock Me Mama”.

Years later, Ketch Secor (who obviously knows his Bob Dylan bootlegs) of the band Old Crow Medicine Show added new verses to Dylan’s riff.  In an amazing occurrence, Bob Dylan consented to the co-write, even with the 28 year time difference, and a song was born.

So legally what is “Wagon Wheel”?  One can’t tell from the publishing information but it meets the definition of a “derivative work” defined in the Copyright Act as “a work based upon one or more pre-existing works, such as … a musical arrangement … or any other form in which a work may be recast, transformed or adopted.”  A derivative work cannot be exploited without permission from the underlying copyright owner.  This is to be distinguished from a “joint work” which is defined as “a work prepared by two or more authors with the intention that their contributions be merged into an inseparable or interdependent parts of a unitary whole”.  This describes the typical co-writing situation where each author owns an indivisible share of the copyright.

Taking this a step further, a parody is a derivative work.  If the underlying author does not authorize the exploitation of the work, the parodist’s only defense is to argue “fair use” as Luther Campbell did in the “Pretty Woman” case, an important case with a holding that nevertheless still confuses me.

There are many different ways that songs can be created.  Think of Billy Bragg and Wilco adding music to the poems of Woody Guthrie or the recent album where  Bob Dylan, Jack White and others added music to lyrics found in one of Hank Williams’ “lost” notebooks.

Lawyers often get involved in the aftermath of these creations.  In the past I’ve had to deal with one co‑writer wanting to add a third co-writer’s contribution to a song after it was considered finished, a co‑writer of the songs in a musical who wanted to use the songs in a different setting and the thorniest issue of all, a co‑writer who wanted to “undo” a co-written composition.

All of these issues present challenges and also make the study of the different forms of collaboration and the legal repercussions endlessly fascinating.

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