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Everything is related to Naples
Number 60 in this series. Link to all items here.

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Copyright Laws that Make Your Head Hurt

Among the many stories surrounding the song 'O sole mio, one has to do with the 1920 Olympic Games held in Antwerp, Belgium. The conductor of the band couldn't find the music to the Royal March, the national anthem of Italy, so he struck up 'O sole mio! After a few moments of confusion, the crowd got the idea and stood up. That's just how iconic the song had become for Italy almost from the time it was composed (1898). (There was a great typo in an il Mattino article about that event: the Italian name for Antwerp is "Anversa". The newspaper, however, referred to "the 1920 Olympics in Aversa..." [sic]. Aversa is a small town north of Naples, most famous as the one-time site of a notorious hospital/prison for the criminally insane. That kind of error is not at all uncommon in the local papers. Some years ago, one writer for il Mattino called Princess Grace of Monaco a "Bavarian Princess". Besides referring to the principality on the French Riviera, "Monaco" also happens to be the Italian name for Munich. That, of course, was not a typo—just stupidity.) 

There's a stranger and much more recent episode having to do with 'O sole mio, and it has to do with copyright. (Stifle that yawn. It gets interesting. And confusing.) Some sources on the history of 'O sole mio assume that this most famous of all Neapolitan songs (ok, maybe it's a toss-up with Funiculì-Funiculà) must have been in the pubic domain in the mid-20th-century when various non-Italian versions of it appeared on the worldwide market. How else could Tony Martin have recorded the melody with the lyric of There's No Tomorrow or Elvis Presley have done It's Now or Never to the same tune? International copyright law makes quantum entanglement look like See Dick & Jane Run, so I really don't know. (If anyone does, I await your message. I will print the best explanation in this space or come to your house and serenade you with 'O sole mio. In keeping with the spirit of this entry, however, I won't pay you a cent!)

Anyway, Bideri (now Gennarelli Bideri) Music Publishers sponsored the famous Piedigrotta song festival in 1898 and 'O sole mio came in second. Bideri apparently then bought the song from two authors, Giovanni Capurro (1859-1929) (lyrics) and Eduardo Di Capua (1865-1917) (music) for a small one-time fee. There is almost no information on the Bideri website about such things. Both Capurro and Di Capua died in poverty having made nothing off of one of the most recognized and recorded songs ever written. Maybe the publishing company feels guilty about this and hangs its head in shame all the way to bank (but I wouldn't count on it). Bideri does tell us, however, that they presented Elvis with a Golden Record in 1957 for It's Now or Never, so they must have had some interest in the song, either financially or, perhaps, merely because it was good publicity.

OK, wake up! It turns out that there were three authors, not two. In October, 2002, Maria Alvau, a judge in Torino, decided that one Alfredo Mazzucchi (1878-1972) deserved to be listed as a co-author of the melody to 'O sole mio. (Mazzucchi's name does, indeed, appear with that of Di Capua on early Italian sheet music of 'O sole mio.) Mazzucchi is obscure even to students of the Neapolitan Song and is usually referred to as a "transcriber," meaning that, as a young pianist, he would show up and work at the keyboard to help the "real" songwriters get their ideas down on music manuscript.
The lawsuit came about because Di Capua's heirs sued to have granddad recognized as the sole composer of the melody. This, in itself, is strange since those heirs couldn't claim any money from a song that had been sold legitimately back when it was written. So why would they sue? They may have anticipated a suit against themselves by Mazzucchi's heirs who might claim that their own grandfather was one of the composers and had never agreed to sell the song in the first place; thus, Bideri couldn't own the song and someone would now have to cough up some back royalties. In other words, the Di Capua people would sue in order to keep the Mazzucchi camp from suing them for all that money. That became moot when judge Alvau said that Mazzucchi had had as much to do with many of Di Capua's famous melodies as did Di Capua, himself; she said that Mazzucchi's contribution to the "creative process" was "indistinguishable" from that of Di Capua. The decision extends, as well, to 18 other popular Neapolitan songs composed by di Capua, including Maria Marì (commonly known as Oi, Marì). 

As things turned out, Di Capua's descendants were not too unhappy at the ruling, perhaps because of the interesting copyright implications. 'O sole mio is one of the most recorded songs in the history of the industry. If my fine legal mind has not melted from all this, I think the decision says (1) that since Mazzucchi was not consulted in the original sale of the song to the music publishers, that sale was invalid; (2) the song, thus, does not legitimately belong to Bideri and, in any event, a Bideri copyright has expired; (3) since copyright lasts 70 years beyond the death of the last surviving author/composer—in this case, Mazzucchi, who died in 1972—the song is protected by copyright (belonging now to the heirs of Di Capua, Capurro and Mazzucchi until 2042; and (4)—the nitty gritty that renders all of this much more than the ho-hum legal quibble you thought it was going to be—said heirs are entitled to retroactive royalties (!) on one of the most recorded songs in history.
I think that such a decision is only meant to apply nationally* [please see the note below], that is, to versions of the original 'O sole mio performed or recorded in Italy. This brings into play the Società italiania di autori e editori (SIAE, the Italian Society of Authors and Editors) the agency that takes care of paying royalties. I have not been able to find out how much is at stake—or if it is now (eight years on from the court decision) being paid out—but it has to be somewhere between "lots" and "staggering".

Gee, I seem to remember showing up at Cole Porter's house one time with a couple of tunes...

[update, added- Jan. 2017]If you have not read the top portion of this entry, you should.

*[note related to 'only meant to apply nationally'] or

If you think your head hurt before...

I have received a kind and very informative note from Peter R., a royalties administrator in England, to the effect that my phrase 'only meant to apply nationally' is incorrect. He's right; indeed, how could it be correct?! A national court decision has nothing to say about how other nations shall choose to view that decision. Here, in reference to 'O sole mio, Peter says

It appears that decision has promulgated at least throughout the EU, and possibly to Canada as well....the Performing Right Society and the International Music Score Library Project appear to be indicating that it is only in public domain in the USA.

The crux of the matter seems to be that while various copyright conventions generally bind member countries to respect the copyright/royalty claims of other member countries, they do not necessarily take precedence over a nation's own laws. In other words; a work may be protected in one country and be in the public domain (PD) in another. Specifically, in the case of 'O sole mio, that work has now reverted to protected status in the UK (which respects the Italian court decision) but remains in PD in the USA because American copyright law says that works published before 1923 are all in PD. Peter tells me that in the case of 'O sole mio,

Once the Italian court established the 'fact' of Mazzuchi's co-authorship, that would have to be accepted by all the other copyright societies, especially as it will be such a high-earning piece for public performance and recording royalties. But in doing this they would apply their own rules...The rights are with ASCAP [American Society of Composers, Authors and Publishers]* in the USA, and the copyright registrations are a mess! There are 143 of them! [emphasis added] Some have Capurro and Di Capua getting 50% each, some have them getting 50% between them, and some give them nothing, with the royalties going to a newer arranger.

(That confuses me even more because it is common knowledge that Capurro and Di Capua sold their rights to Bideri publishers right off the bat, so how could they have gotten anything at all after that?) But a later note from Peter says,

I don't know why Capurro and Di Capua's heirs still get a share, despite the supposed sale of the rights. A publishing deal will often sell the rights (technically it's an assignation of the rights) for life in return for an advance, but it usually also contains a % royalty for the composer and/or lyricist for the duration of the copyright, so my guess is that was the case here.

The number of qualifiers in determining whether a piece of “intellectual property” is protected or in public domain is bewildering. Such qualifiers may ask: When was it published? Where was it published? What language was it published in? When did such and such a country join the Berne copyright convention? Did it originally have a copyright notice? If not, when was it added? In the case of music, are you talking the sheet music—or a sound recording from that sheet music? Was the composer left-handed? (God, I hope I just made that last one up.)

p.s. I can't wait to grow down so I can renew my vow not to study copyright law.

*misc. notes

1. The Berne Convention for the Protection of Literary and Artistic Works was first established in 1886. It was revised in 1896 (Paris), 1908 (Berlin), 1928 (Rome), 1948 (Brussels), 1967 (Stockholm) and 1971 (Paris).
The United States initially refused to become a party to the Convention and did not do so until the U.S. passed its own Berne Convention Implementation Act of 1988. Thus, I have a feeling that at mid-20th-century, US publishers could safely use tunes from foreign songwriters (even if the material was protected in the country of origin) without fear of being sued. Of course, music composed in the 19th-century was completely up for grabs by later songwriters. Readers may be aware of a number of well-known popular songs with lyrics set to classical themes: Till the End of Time, from Frédéric Chopin's Polonaise in A flat major; Tonight We Love, from Tchaikovsky's Piano Concerto in B-Flat Minor; also, the entire 1953 musical Kismet uses the music of Alexander Borodin (including the hit song, "Take my hand, I'm a stranger to copyright").

2. The Neapolitan song, Funiculì-Funiculà, with music by Denza, has had some copyright adventures, as well. See this link.

3. Theme songs of old US radio and TV shows are also interesting. Rossini lived too long ago for any of his heirs to even think about getting money from the Lone Ranger for the William Tell Overture. The same is true for poor Rimsky-Korsakov; his heirs will never collect a dime from the Green Hornet for The Flight of the Bumblebee. Then there is the case of Sergei Prokofiev. He died in 1953, by which time the hit radio crime drama, The FBI in Peace & War, had been running for nine years on CBS in the United States using as its theme song the march from Prokofiev's opera, The Love for Three Oranges. I wonder if Sergei ever complained to Stalin: "Those capitalists rats are using my music! I want some dough!" "Why, Sergei," Uncle Joe would have said, "what a totally capitalist ratty thing to want. All intellectual property belongs to the people. Besides, we don't belong to the international copyright convention, either."  (back to text)

4. ASCAP and SIAE (mentioned, above) are PRO's  (performance rights organizations), providing for the payment of royalties to copyright holders whose works are used publicly. Many nations have such organizations. A few others: BMI (Broadcast Music, Inc. - USA); SACEM (Société des auteurs, compositeurs et éditeurs de musique – France); GEMA (Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte – Germany); (PRS [Performing Rights Society] for Music Limited – UK). Indeed, if you like acronyms, this is for you!

5. added Oct. 2015: HAPPY BIRTHDAY TO YOU. In spite of a recent court decision hyped by the press as putting "Happy Birthday to You" in the public domain, it isn't--at least the words. So keep humming.  Invent your own words. If you want to be thoroughly confused, here is a good explanation of the recent decision.

(Other entries on the Neapolitan Song here and here.)

(And an entry on the non-Neapolitan Song, click here.)

(Also see related item on copyright and photography here.)

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