The Jazz Record Locked Until 2067

The story as it is told

Jelly Roll Morton, the story goes, was a braggart who told anyone who would listen that he had invented jazz.

Among people who post old music online there is a second story: that anything recorded before 1972 can never be public domain, because state law protects it until 2067. A record like Morton's "Black Bottom Stomp" is locked away for good.

What we can confirm

Both stories have a true kernel. Morton really did say he created jazz in 1902. The 2067 rule really was written into federal law. Since Oct 11, 2018, the 2067 date has been only the outer limit, and recordings from 1923 to 1946 now come free one year at a time, 100 years after their release.

On Sept 15, 1926, in Chicago, Jelly Roll Morton's Red Hot Peppers recorded "Black Bottom Stomp" for the Victor Talking Machine Company. The second take, matrix BVE-36239-2, was issued as Victor 20221. The Discography of American Historical Recordings, working from Victor's own history card, gives the release date as December 1926. The band was Morton on piano with George Mitchell, Kid Ory, Omer Simeon, Johnny St. Cyr, John Lindsay and Andrew Hilaire. (DAHR; Internet Archive transfer)

Three days after the session, on Sept 18, 1926, Melrose Bros. Music Co. of Chicago registered the published band arrangement: "Black bottom stomp; by Jelly Roll Morton [pseud. of Ferd Morton], arr. by Elmer Schoebel." (Catalog of Copyright Entries, 1926 Music) Morton's music scholar John Szwed calls the record a summary of everything Morton meant by jazz, packing into one short piece the "Spanish tinge," stomps, breaks, stop-time and "a complete suspension of the rhythm section during the piano solo." The Library of Congress added it to the National Recording Registry, inducted with the 2006 class, describing how "Morton fashioned a unique, continuous whole."

The fame did not last. Szwed writes that in 1930 Morton lost his RCA contract and cut ties with the Melrose Brothers, "who he said had cheated him out of his money." On March 26, 1938, Robert Ripley's radio show Believe It or Not introduced W. C. Handy as "the originator of jazz, stomps, and blues." Morton wrote to Ripley, Down Beat and the Baltimore Afro-American. He said he had created jazz in 1902, written the first stomp ("King Porter Stomp") in 1906, and used "swing" in a title in 1907. (Szwed) That spring and summer, Alan Lomax recorded more than nine hours of Morton talking and playing at the Library of Congress, which the Library calls "the first extensive oral history of a musician recorded in audio form." (Library of Congress blog) Lomax also advised him on copyrighting his music and on lawsuits he was planning against Melrose Music, ASCAP and the Music Corporation of America. Morton died of heart failure in Los Angeles on July 10, 1941. (Szwed)

The copyright tale is the odd legal status of the record itself. Federal copyright did not cover sound recordings fixed before Feb 15, 1972. They were left to state law, and the 1976 Copyright Act said those state rights would not be cut off "until February 15, 2067," adding that no such recording "shall be subject to copyright under this title before, on, or after February 15, 2067." In practice that meant a 1926 jazz record could stay locked for 141 years.

The Music Modernization Act, signed Oct 11, 2018, replaced that with a federal rule, 17 U.S.C. §1401. A recording first published from 1923 through 1946 is protected through the end of the year 95 years after first publication, plus a five-year transition. For a December 1926 release, that is Dec 31, 2026. (17 U.S.C. §1401(a)(2); U.S. Copyright Office) The song itself, published in 1926, already entered the public domain on Jan 1, 2022.

The facts

• Victor 20221, matrix BVE-36239, take 2, recorded 9/15/1926; "Release Date: 12/1926," source Victor blue history card. adp.library.ucsb.edu
• Recorded in Chicago, Sept 15, 1926; personnel Simeon, Mitchell, Ory, Morton, St. Cyr, Lindsay, Hilaire. archive.org
• CCE 1926 Music entry 18702: "Black bottom stomp; by Jelly Roll Morton [pseud. of Ferd Morton], arr. by Elmer Schoebel; orch. 4to. © Sept. 18, 1926; 2 c. Oct. 4; E 648730; Melrose bros. music co., inc., Chicago." archive.org (confirmed on the page image, printed p. 961, scan leaf n1008: archive.org)
• National Recording Registry: "Black Bottom Stomp," Victor 20221-A, released 1926, inducted with the 2006 class; quote "Morton fashioned a unique, continuous whole." loc.gov
• 1930: lost RCA contract; split with Melrose, "who he said had cheated him out of his money." Szwed, "Doctor Jazz," jazzstudiesonline.org
• Mar 26, 1938 Ripley broadcast; Morton's letter claiming jazz 1902, "King Porter Stomp" 1906, "swing" in a title 1907. Szwed.
• Lomax recorded "over nine hours" in 1938, "the first extensive oral history of a musician recorded in audio form." blogs.loc.gov
• Planned lawsuits against Melrose Music, ASCAP and MCA; stabbed at his club in fall 1938; died of heart failure July 10, 1941. Szwed.
• Old 17 U.S.C. §301(c) 2067 language. law.cornell.edu (current text and notes)
• §1401(a)(2): 95 years after first publication, plus 5-year transition for 1923-1946 releases; nothing protected after Feb 15, 2067. law.cornell.edu
• MMA Title II (Classics Protection and Access Act) enacted Oct 11, 2018. copyright.gov

Related: What enters the public domain in 2027

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