logo Enthusiasms No 22
A collection of shorter pieces on subjects of
interest, outrage or enthusiasm ...

Who Owns the Game?
... a question of Cultural Patrimony

On the recently issued Topic CD of Walter Pardon, A World Without Horses (Topic TSCD 514), there is an interesting track where Walter discusses how different members of his family 'owned' their own songs.  In the Pardon household singers had their own songs and it was considered improper for other members of the family to publicly sing another's songs.  This, of course, was not a unique attitude and the same could be said for many other situations.  In the well-known Blaxhall Ship pub, each singer had his, or her, songs, and woe betide any person who tried to sing, say, one of old Bob Scarce's songs in the octogenarian's presence.

By the time collectors reached Walter Pardon's doorstep, all of the relatives and friends who had taught Walter songs had, by then, died and the songs had all become Walter's 'property'.  Walter was now free to sing them any time he liked.  They were, after all, 'his' songs.  Or were they?  What happened, say, when Walter allowed a collector, such as myself, to record one of his songs?  Did the song suddenly cease to belong to Walter?  Had it now become 'my' property?  Or did we now both have a stake in the song?

Let's, at this point, return to The Ship Inn at Blaxhall at the time shortly after Bob Scarce died.  Did Bob's songs pass away with Bob's demise?  Or, if not, then what exactly happened to them as regards the other singers who were still left, such as Cyril Poacher, Bob Hart and Geoff Ling?

One of the songs that Bob used to sing was called AustraliaAustralia was originally an eighteenth century song concerning transportation to the then-British colony of Virginia, and would have been composed by a hired writer on behalf of a broadside printer.  Having entered the tradition, the song's title was presumably changed from Virginny once convicts were no longer sent to America, but rather to Australia.  It seems that Bob probably learnt the song from Walter 'Yinka' Friend, with whom he had worked at Snape Maltings.  Bob Hart, another local singer and Maltings worker, also learnt the song from Yinka.  So, following Yinka's death, we find that the song now had two 'owners'.

When Bob Scarce died, Cyril Poacher began singing Australia, having learnt it from hearing Bob Scarce previously sing the song.  Bob's 'ownership' of the song had thus passed to Cyril.  So now the song was 'owned' by both Cyril Poacher and Bob Hart.  Just to confuse matters further, Cyril's cousin, Geoff Ling, also began to sing the song in public, following Bob Scarce's death.  Geoff, however, had not learnt the song from Bob Scarce, but from his grandfather, Aaron Ling - who was also Cyril Poacher's great-uncle.

Australia was collected from Bob Hart by Rod and Danny Stradling in 1969, by Bill Leader later in the same year, by Tony Engle - on behalf of Topic Records - in 1972 and by Ginette Dunn - a New Zealand folklorist - two years later.  It was collected in 1974 from Cyril Poacher by both Keith Summers and Tony Engle - again for Topic Records - and by Ginette Dunn, while John Howson also collected the song round about the same time from Geoff Ling.  It should also be added that versions of both Virginny and Australia had been previously collected by other pioneer collectors early in the 20th century.

Now, I am not trying to confuse readers.  I am simply trying to show that by the mid-1970s it was becoming extremely difficult to say just who exactly 'owned' the song Australia.

As each singer, being a traditional singer, would have sung the song in a slightly different form, it could probably be argued in English Law that each singer's version was an 'arrangement', that it was, thus, unique to each singer.  Similarly, there would be nothing to stop each of the collectors from producing his, or her, own 'arrangement' of the song that they had collected - although I would suggest that an accurate transcript of a traditional singer's version of a song does not constitute an 'arrangement'.  However, assuming that the collectors did make their own 'arrangements' of the song, we are left with the theoretical possibility that the song could have been 'arranged' - with each 'arrangement' being copyrighted - by at least three traditional singers, seven different collectors and one record company.  In other words, no less than ten different people and one record company could have been claiming some sort of 'ownership' for the one song!

Clearly there is something of a nonsense in this idea.

Singers and Collectors

Song ownership has never really been a problem for singers.  When a singer is part of a singing community, 'ownership' of a song will almost always be known to the community as a whole, and there will be social pressure brought to bear on any singer who steps out of line.  For a singer living in isolation from other singers there is no problem at all.  Collectors are, of course, a different kettle of fish.  Some, such as Vaughan Williams and Bartok, were inspired by their work as collectors and incorporated much of their collected work into their own compositions.  Cecil Sharp, on the other hand, was largely motivated by a genuine desire to 'give folksongs back to the people', and this he did by arranging the songs that he collected for vocal performance with piano accompaniment.  I doubt if any of these early collectors bothered to consider whether or not anybody actually 'owned' the songs and melodies that they were collecting and exploiting.  Folksongs were like 'Primitive Art' - a debased term redolent of cultural superiority which early art historians perceived to be the work of autochthones.  Folksongs, like Primitive Art, had somehow 'sprung from the ground' (auto = self, chthon = ground) and, as such, were anonymous in origin and without claim to ownership.  To the early collectors they represented a tradition that was on the point of extinction and one that was increasingly difficult to obtain.

If nobody 'owned' traditional folkmusic, then any money that was to be made from it could only belong to the exploiters by way of their own compositions and publications.  And this, of course, is the principal dichotomy between traditional singers and collectors.  With very few exceptions, we may say that only the collector stands to obtain a pecuniary advantage from his, or her, activity.  And, of course, should the collector wish to publish his or her material, then there is a whole world of media people only too ready to grab their piece of the pie.  Now some collectors might object to this by saying that I am being oversimplistic.  Academics, for example, might try to argue that their collecting is part of their PhD requirements and that they are not out to make money.  Such arguments, of course, conveniently forget to mention that their higher degrees will put them at the top of the pay scale for many years to come.

Objects of Cultural Patrimony

Perhaps, at the start of a new millennium, it is time to take stock of the situation; to take a fresh look at a problem which has grown over the last hundred years, and which, in doing so, had obscured, rather than clarified, the question of who really 'owns' folk music.  In order to find an answer, I suggest that we must step outside our own field of study and look at another group of people who have had to come to terms with a very similar problem.

The people that I am thinking of are archaeologists and ethnologists; people - rather like folksong collectors - who go out into the field to collect objects, some of which are then placed on view in public institutions.  Many of the early archaeologists had similar backgrounds to Cecil Sharp and Vaughan Williams and were able to self-finance their penchant for popping over to Egypt to dig up the odd ruin or two.  Gradually, over the years, the discipline became more regulated and museums became drawn into a debate concerning their display of items which may have been removed illegally from overseas sites.

Most countries now have laws prohibiting the wholesale export of archaeological and ethnographic material, and over the last few years Western museums have begun to follow a Code of Practice which only allows them to obtain and display items which have been legally removed from a country.  Many items held in Britain, such as the well-known Elgin Marbles or the less well-know Benin Bronzes, were, of course, exported from their homelands long before such export laws existed.  However, Britain's right to ownership of the Elgin Marbles does not stand up too well when we consider just how we came to obtain them in the first place.  And the same may be said for the Benin Bronzes which were looted by our ancestors in the name of Queen Victoria.  Is it any wonder that the victims of this cultural theft are now demanding the repatriation of what is, basically, their own history and culture?

But what does any of this have to do with the question of who owns folkmusic?

In 1990 the American Government passed an important piece of Legislation, namely the Native American Graves Protection and Repatriation Act (PL 101 - 601, 25USC 3001 3013).  Whilst this Act was primarily designed to return Native American remains to the Native American people themselves, rather than have them kept in a museum, it does contain a section saying that 'objects of cultural patrimony' must also be returned.  All museums and institutions in North America which receive Federal funding are now obliged to list and, if requested, return items from their holdings of Native American objects and artifacts to the native people themselves.  In other words, the American Government has said that certain objects - including objects of cultural patrimony - no longer remain the property of the museum or institution, but rather, they belong to the original owners or their offspring.

In effect, the American Government is saying that the museums and institutions had no right to these objects in the first place and that previous wrongs must now be corrected.  (For a fuller discussion on this, and related, topics see The Ethics of Collecting Cultural Property edited by Phyllis Mauch Messenger. University of New Mexico Press. Second Edition, updated and enlarged, 1999)

A folksong is clearly an 'object of cultural patrimony' - i.e. it is a cultural item that is passed down from generation to generation.  Now American law is not valid in Britain, but many British museums have taken on board what is going on in America and are voluntarily returning ethnographic objects back to their original owners.  Surely it is time for us to realize that our folksongs and folkmusic are part of our Cultural Patrimony and, as such, they belong to us all.  Collectors, especially professional collectors or institutions like the BBC Sound Library, might not like this idea - but then neither did American museum curators when they first grasped the reality of what was happening in respect to their Native American holdings.

It is clearly right that we British should be thinking about returning objects of cultural patrimony - remnants of our colonial past - to their rightful owners.  We ought, equally, to be realising that legal ownership, by any individual or institution, of a folksong, dance or tune is a moral absurdity and that the supposed copyrights to such material should be returned to the Public Domain.

In the current debate about nationality the English seem to have been left far behind the Irish, Scots and Welsh when it comes to national identity - but, thankfully, young people are constantly returning to their roots with a vitality that almost defies belief.  It's time that they were able to do so without the hindrance of legal and cost implications.  It might also be a step towards getting the English to realise the true significance of our own, often misunderstood, cultural patrimony.

Michael Yates - 8.8.00

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