Tango is full of myths. Knife fights. Brothels. “It’s always the leader’s fault.”
Today I caught a live one. You are going to want to know about this. And I’m going to take you on the long route because as important as the truth on this point is showing you how I myth-bust, so I am going to do so in excruciating detail, while it’s still fresh.
Two days ago I received a notice from my video host, vimeo, that two of my videos would be automatically made invisible in 48 hours due to copyright violations. I had the option to upload new videos with different or no music, and the option to appeal.
As you may know, Youtube is full of advertising. That’s because they no longer bother with these “takedown notices”. If a video contains copyrighted music, they slap an ad on the front and send the royalty payments to the music artist.
One of the differences between Youtube and Vimeo is that Vimeo does not have advertising. Another difference –the difference I pay for– is that if I want to change something in a video I can reupload it to the same URL, without losing any of the links I or others have created to that video. None of this “please see the updated video” nonsense that creators have to do on Youtube.
I remembered that in 2021 when I created a video ad for Until Forever, I wanted to use D’Agostino’s “Gil a Rayas” in the background of the ad. When I uploaded this ad to google it was flagged for a copyright violation. (They don’t put ads on ads, so…) My friend DJ Pez did a search and found a version of the song that was public domain. He sent me a link to an online shop. I bought the song, put it on the video and the ad was accepted by Google.
Not remembering the name of the shop, I did a websearch for public domain tango songs, and found a page on a website called TangoExchange: Argentine Tango Information since 2007. Unfortunately this site has not been updated since 2020. But the very valuable 2019 page “Free (and legal) Argentine Tango Music Downloads” is still working. On this page I learned that “Music recorded in Argentina more than 70 years ago [is] Public Domain.” I then followed two links on the site to repositories where I did not find the two songs I was looking for.
So then I thought to search for the store where I had bought the song in 2021 and I found it, TangoTunes. I looked for my two songs and found them! The website was easy to use and everything worked well. I put the songs on the videos and re-uploaded them to vimeo. One was again flagged for the same problem. I appealed and sent a screenshot of the TangoTunes page, showing that the song was published in 1942. The appeal was denied.
So I went to the TangoTunes website to verify that these tracks are definitely public domain. I found no relevant information anywhere on the website. I did learn about how they make digital tracks from ancient shellac and vinyl records. The process was very impressive and surely warrants the price of €1.50/track. But I had no answer to my question, so I wrote an email inquiring about the status of the tracks. I received a very fast answer informing me that copyright held for 70 years after the death of the composer, and therefore that tracks from the 1940s were likely still under copyright. The guy answering the email then informed me that he sometimes gave permission for tracks to be used.
Although the website was impressive, the email response of good length and fast, something seemed off. And my favorite teacher of research methods, Dr. Avery Gordon, tells us that such a sense, a “ghost”, is often a portal to a concealed truth.
The most obvious signal for a social scientist is a contradiction. TangoExchange said 70 years AFTER PUBLICATION, TangoTunes said 70 years after the DEATH of the composer. So someone was wrong. Fortunately TangoExchange posted a link to the 2009 Argentine Law 26,570 which updates the 1933 Law 11,723 for Intellectual Property.
“The intellectual property over their interpretations or executions recorded in phonograms corresponds to the performing artists for a period of SEVENTY (70) years counted from January 1 of the year following the year of their publication. Likewise, the intellectual property over the phonograms corresponds to the producers of the phonograms or their heirs for a period of SEVENTY (70) years counting from January 1 of the year following the year of their publication. Phonograms and performances that are found in the public domain without the protection periods provided for in this law having elapsed will automatically return to the private domain for the remaining period, and third parties must cease any form of use that they may have made during the period. when they were in the public domain.”
So, this means that today, in 2023, every Argentine song published before 1953 is public domain.
I started to compose an email back to the TangoTunes guy, with the text of the law and the link. In doing so I realized a second ghost in his response to me. I had included the full text from TangoExchange, in which the author identified four categories of music:
- Music recorded in Argentina before September 28, 1933 — Always in the Public Domain.
- Music recorded in Argentina more than 70 years ago — Public Domain.
- Music transferred from original records and republished (CDs, digital files, reprints on vinyl records, or any other audio format) with a claim of a new Phonogram Copyright are not in the Public Domain until 70 years after their publication. For example, the audio on a vinyl record created in 1980 is protected by copyright until 2050 (1980 +70 years), even if the audio on that record is public domain tangos from the 1930’s.
- Music you, or others, copy from original records (78RPM shellacs) that are more than 70 years old, who then share them freely, are in the Public Domain.
I had specifically asked the TangoTunes guy if the songs I was after were in category 3 or 4. I asked if they had been republished. And I suggested that he add another field to his database which displays information next to each song, to tell the customer if it is public domain or under copyright.
He didn’t answer these points. Now I have no idea what’s really going on at TangoTunes, but if he doesn’t have ready access to this information, it means that they are not databasing which songs require copyright payments and which do not. I find it rather unlikely that they have permission to re-sell any vinyl recording they digitalizing without paying copyright. They ought to be crystal clear about which of two boxes each song is in.
What he said instead was “Public domain status does not automatically grant permission to use the transfer unless you personally create the transfer from a shellac for your own use. However, I would be willing to provide consent if you require it.”
Hmmm. I thought public domain was public domain.
I continued my research. Now this is a phase of research where I was stumbling through websites, following links, reading wikipedia pages, going back, starting over. I learned that copyright law is defined by the country of origin of the work. I learned that the US protects music for 100 years. And how to find out if something very old has been somehow re-protected?
I hoped to find a database of tango recordings, with publication and re-publication dates. I didn’t find this. I did find a wikipedia page which is an effort to list public domain tangos. There I found again the TangoTunes claim that tango song are protected for 70 years after the composer’s DEATH. Just last night I donated to wikipedia. So now I’m part of the community, time to create an account so I too can participate. I carefully edited the page, adding the link to the correct law. My song weren’t listed there, but I wasn’t convinced by this page, which listed very few songs. Then I searched “Argentina Public Domain” and found the wikipedia page on the Copyright Law of Argentina. And there, simple as blazes “For most works, copyright lasts for the lifetime of the author, plus 70 years.”
Most works.
Apparently the law has not been carefully read.
A normal part of research is self-doubt. How could I really be right and wikipedia wrong? Especially about music, which I profess to know nothing about. I double and triple-checked the url of the Argentine Law. I took off the translator, reloaded, and read it in Spanish. I read the original (much longer) original law 11.723. I read the updated version of 11.723 incorporating 26.570. Yup, wikipedia is really wrong. I carefully updated another wikipedia page with the text: For musical recordings, the copyright expires 70 years after publication.[5]
But I still didn’t know if MY songs had been republished. So what does that mean? How easy is it to republish something once it’s public domain? So I started to look at how that can happen. And basically it can’t. Once something is public domain, it cannot be copyrighted again. This lead me to a wikipedia page on “Copyfraud” which is when somebody tries to sell public domain work as if it’s copyrighted. On this page is a section about a version of copyfraud in which a company selling a public domain product claims control over how the public domain material can be used on the basis of “licensing”. In this US the state of such “licensing” control of public domain material is currently in a legal grey zone because of conflict between state contract law and federal copyright law.
But I’m in Europe. What’s going on with the control of public domain material in Europe? I was intimidated by that research question, but impressively it was very very easy to find the answer. It took about 3 minutes.
First I found a wonderful website called Europeana, including this statement:
- “What is in the Public Domain needs to remain in the Public Domain. Exclusive control over Public Domain works cannot be re-established by claiming exclusive rights in technical reproductions of the works, or by using technical and or contractual measures to limit access to technical reproductions of such works. Works that are in the Public Domain in analogue form continue to be in the Public Domain once they have been digitised.
- The lawful user of a digital copy of a Public Domain work should be free to (re-) use, copy and modify the work. Public Domain status of a work guarantees the right to re-use, modify and make reproductions and this must not be limited through technical and or contractual measures. When a work has entered the Public Domain there is no longer a legal basis to impose restrictions on the use of that work.”
Europeana is funded by the EU, but the .eu designation is not limited to governments. This statement, part of the “Public Domain Charter” is not yet law. So what is the law exactly? I looked for something on a government website: Per the EU Directive 2019/790 on copyright and related rights, there can be no restriction on use of public domain material, even if it has been digitalized.
“What is the new provision on public domain of works of art? When a work of art is not protected by copyright anymore, for instance an old painting, it falls into the public domain. In that situation, everybody should be free to make, use and share copies of that work. This is not always the case today, as some Member States provide protection to copies of those works of art.
The new Directive makes sure that nobody can claim copyright protection on works in the field of the visual arts which have already fallen into the public domain. Thanks to this provision, all users are able to disseminate online with full legal certainty copies of works of art in the public domain. For instance, anybody is able to copy, use and share online photos of paintings, sculptures and works of art in the public domain when they find them in the internet and reuse them, including for commercial purposes or to upload them in Wikipedia. “
This is a summary of the law. I also read the real law. The summary was fine.
Did you see “as some Member States provide protection to copies of those works of art.” So I checked the status of implementation of the EU Directive and discovered that Austria amended its copyright law to implement the Directive in December 2021.
So what we learn here is that TangoTunes’ fancy digitalization process does not give them any special rights to restrict the ownership or use of a song that is public domain. Furthermore, that use can include “commercial” use, which means selling it or using it as part of a product.
Back to my email to TangoTunes. I decided to read their Terms & Conditions. Lo and behold the stammering about considering to give me permission is written down in very aggressive terms. It’s quite a lot of legalese, so I’ve emphasized the juicy bits.
§ 13.2. The music files are solely intended for private usage. The customer is not allowed to copy the products for third parties, make them accessible or forward them, imitate them, resell them or to use them for commercial purposes. A transfer of the rights to third parties is expressly excluded. TangoTunes GmbH does not assume any liability for damages that arise from the transfer and utilization of the music files. The transfer of right was done with the completion of the download, pending the full payment of the purchase price.
§ 13.3. Special agreements are applicable for „Tango-DJs“, who use the music files to play them at Tango events (Milongas, Festivals). They are expressly allowed to process and play the music files, but not to transfer them or the rights.
§ 13.4. The customer shall inform TangoTunes GmbH of accesses of third parties to the goods under reservation immediately after discovery. The customer is liable for all costs that occur with the elimination of such accesses, in particular by filing a third party motion to vacat, insofar the reimbursement of the costs cannot be collected from the involved third party.
§ 13.5. TangoTunes GmbH will be held harmless in respect to any type of declared violations of these property and utilization right regulations to the causers. This is particularly applicable to lost sales, profit and damage to reputation, fraud and violation of rights. TangoTunes GmbH will exploit every legal remedy to prevent misuse of its products. This particularly also refers to personal damage compensations to the causer. An amount of EUR 720,00 per music file will be billed per discovery of sharing independent of further cases of holding harmless. This applies to every form of illegal transfer.
§ 13.6. Persons in possession of TangoTunes music files acquired unlawfully and publicly playing them, such as as a DJ at a tango event, will be charged EUR 150 per played music file. This also applies to individuals who have received TangoTunes transfers for promotional or other activities, and whose contract or agreement has expired, for example, because the originally agreed-upon purpose of the agreement no longer exists.
Ok, all that is illegal. No music seller (Apple, Spotify, TangoTunes) have any rights over what anyone does with a recording that is in the public domain even if it has been digitalized.
