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The Savory Jazz Collection: When Will These Orphan Works Find a Home?

Published onOct 28, 2011
The Savory Jazz Collection: When Will These Orphan Works Find a Home?

Billie Holiday, Benny Goodman, Teddy Wilson, and Coleman Hawkins were great jazz musicians, but some of their most spectacular recordings are not fully available to the public.  Why?  The recordings of the impressive Savory Collection are “orphan works.”

A work is legally an orphan work where it is difficult or impossible to identify or contact the copyright owner.  This legal phenomenon occurs because of the evolutionary nature of copyright law.  Orphan works are the byproduct of three decades of change that has relaxed the obligations of copyright owners to assert and manage their rights.  The U.S. Copyright Office recognized the detrimental effect of the potential copyright liability of orphan works and suggested a legislative solution when they published a Report on Orphan Works in 2006.  The proposed legislation, the Orphan Works Act of 2008, creates a limitation on remedies available for copyright violations of works that meet the criteria of an orphan work.  The controversial criterion is a “reasonable search” for the copyright owner.  The purpose of the legislation is to protect good faith users of orphan works without eliminating remedies for copyright owners.

Not all creative artists are pleased about the Orphan Works Act.  Critics of the legislation point out that the government will be protecting, and maybe encouraging, copyright infringement.  Although the critics have a point, artists should make their work available for copyright enforcement.  An artist that cannot be found does not stand on solid ground to deny the public access to their work.

William Savory

Orphan works included in the Savory Collection are treasures that should be enjoyed by the public.  What makes the collection so unique is that the jazz giants were recorded on technologically superior recording equipment.  Performances recorded in the Savory Collection were previously only heard in dingy 1930’s jazz clubs, the spontaneity made them special.  William Savory was able to capture the live jam sessions on his custom recording devices.  Savory, an industrial genius of his time, developed a recording system that enabled him to record longer performances that exhibit the height of jazz creativity.

Savory kept and stored nearly 1,000 discs at his home until his death in 2004.  Savory’s son, Eugene Desavoret, salvaged the discs and sold them to the Jazz Museum in Harlem in 2010.   The impressive collection is currently undergoing digitalization.  In order to hear the full recordings, one must visit the Jazz Museum in Harlem; only samples of the recordings are available online.

Mosaic Records is eager to produce CDs of the collection and make them available to the public.  However, copyright concerns surrounding these orphan works are indefinitely holding this project up.  The biggest attempt to tackle publication of orphan works was undertaken by Google Inc in 2009.  Google Books attempted to create a universal digital library that would include many orphan works.

Various publishers and the Authors Guild attacked Google’s plan in 2005.   After Google attempted to settle the dispute, the Justice Department stepped in and pointed out that Google’s attempt to digitize millions of books went “too far” and took advantage of “orphaned” works, thus rejecting Google’s settlement offer.

Google, like many jazz fans, argue that public access to orphaned works should be encouraged and will lead to greater access to the cultural output of the 20th century and beyond.  When will this happen?  U.S. District Court Judge Chin, the same judge who denied Google Books’ settlement agreement, points out that Congress must act to decide the future of orphan works.

For now, the only thing jazz fans can do is hope that Congress can get their act together and find a home for orphan works.  More likely, fans will unfortunately have to wait until the Savory Collection joins William Shakespeare’s works in the celebrated public domain.

* Christian Stoffan is a second-year law student at Wake Forest School of Law and is involved in the International Law Society.  He holds a Bachelor of Arts in History from the University of Michigan.  Upon graduation in May 2013, Mr. Stoffan intends to practice either real estate or international law.

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