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stevenarntson on 10/12/2009 at 08:08AM

The Absent Second: An Explanation

In 1931, the Carter Family recorded a song called "Can't Feel At Home," a spiritual about storing up treasure in heaven in the face of the world's cruelty. The chorus contains the line "I can't feel at home in this world anymore." The catalog of copyright entries produced by the Library of Congress Copyright Office contains the following notice for A.P. Carter:

Can't feel at home ; words and melody by A.P. Carter. © 1 c. Aug. 25, 1931; E unp. 45219 ; Southern music pub. co., inc., New York. 21378

A.P.'s lyric and melody is substantially equivalent to another song called "This World Is Not My Home," by Albert E. Brumley, who copyrighted his words and melody in 1936, five years after Carter. Despite the suggestion of authorship suggested by these copyrights, the song is older than either of these versions. In his essay, "Roots of Bluegrass Music," Richard L. Matteson Jr. charts its history, which reaches back in print to a 1909 hymnal and likely long before that in the oral tradition. There are two recordings that predate that of the Carter Family. One is by Sam Jones, from 1924, and the other is by The Kentucky Thorobreds, from 1927.

Sometime in the late 1930s, Woody Guthrie heard a version of the song and penned a parody of it titled "I Ain't Got No Home," which considerably changes the tone of resigned worldly rejection of the original spiritual. The line "Angels beckon me to heaven's open door/And I can't feel at home in this world anymore," becomes "Rich man took my home and drove me from my door/And I ain't got no home in this world anymore." The earliest recording of "I Ain't Got No Home" that I know of is from 1940, made by Folkways chronicler Alan Lomax for the Library of Congress.

Sixty-eight years later, in 2008, I heard "Can't Feel and Home" and "I Ain't Got No Home," and felt the latter lyric connected well with some lyrics I was writing for what would become The Emerald Arms suite. I decided to arrange "I Ain't Got No Home" as the second movement. After creating the recording and sheet music of the entire work, I set out to discover whose permission I should ask before giving the suite away online as free recordings and a score.

Because the melody dates back to 1909, it's in the public domain (the current cutoff for which is 1923). Guthrie's lyric, on the other hand, is not. Two companies own different rights to it. The Richmond Organization (TRO) owns the rights to reproducing the song's sheet music and the Harry Fox Agency (HFA) owns the rights to reproducing sound recordings of the piece.

I approached TRO first, sending them the score I'd written for concertina and voice, which contains many annotations specific to my purpose as well as modifications to the tune's melody and chords. A few weeks later I received a letter from TRO. "We are enclosing our music copy of I AIN'T GOT NO HOME," they wrote, "and request that you use the "words and music" from the enclosed copy in your book." The following page contained a photocopy of the melody line of Woody's lyric from what looked like a children's book, accompanied by a cartoon of a guy's butt protruding from the front door of a house.

As TRO was evidently unwilling to discuss the particulars of my arrangement, I decided, regretfully, to remove Woody's lyrics from the score.

I approached HFA next about securing a mechanical/digital license, hoping for a better resolution. Their website,, boasts an automated fee calculator called SongFile, which represents over two million songs. The standard fee is 9.1 cents per copy up to 2,500 copies; beyond that, a non-automated license must be negotiated.

My previous album, The Devil's Dreamworld, has thus far been downloaded from the Internet Archive fifty thousand times. Were a similar number of downloads to accrue, at the 9.1-cent-per-copy rate, for my version of "I Ain't Got No Home," I'd owe HFA almost five thousand dollars, though my use will have generated no income for me.

I met with a copyright lawyer (through the nonprofit group Washington Lawyers for the Arts) to see if there were any other, less expensive option for releasing the song. The lawyer empathized with my frustrations and confirmed that I had explored the correct avenues. At the end of our meeting, he said, "If Woody knew, he'd roll over in his grave."

The folk process is as old as music, and depends on the ability of musicians to adapt from existing sources. A.P. Carter heard an old spiritual, probably while on the road, and arranged it for the Carter Family as "Can't Feel At Home." Woody Guthrie took "Can't Feel At Home" and modified it further into "I Ain't Got No Home." As copyright laws become more restrictive, the folk process suffers. When Woody sings, "Rich man took my home and drove me from my door," it relates not only to the human right to shelter, but also to the human right to culture.

For now, I'm distributing the sound recordings of The Emerald Arms without the second movement, and the sheet music (through the Petrucci Music Library) without Guthrie's lyrics. I hope eventually I'll be able to include these elements as I originally intended.

Composing, notating, and recording The Emerald Arms has occupied me for two years. I'm proud of the effort, and I hope you enjoy the music. Thank you for supporting this project.

Steven Arntson

Seattle, Washington 2009



llee611838 on 10/12/09 at 01:38PM
I encountered a similar Woody Guthrie irony with my forthcoming book "Broke is Beautiful." Woody Guthrie is a spiritual father to the concepts of cultural sharing, anti-capitalism and celebrating the poor and downtrodden. I wanted to use a line from the song Deportees as an epigram for a chapter, but the publishing lawyers told me that to use the lyrics could cost more than I stood to make on the book. So I couldn't do it. It also struck me as deeply ironic.
jason on 10/12/09 at 02:23PM
Steven, thanks for sharing your music and your story, which illuminates so many of the problems with copyright in its current state.

first of all, Harry Fox doesn't distinguish between free noncommercial downloads and for-sale physical copies. Wouldn't it be great if there were a non-commercial/promotional rate? That would be a wonderful development for the Free Music Archive; there are so many cover songs that we'd really love to share, but unfortunately we're not able to clear 99.9% of them so they're just sitting in a folder locked away where nobody can hear this great music.

Now, in reality, if instead of doing all this research and legwork (on top of the 2+ years spent on the music itself) to do things the "right way", I mean if you just posted the "Absent Second movement" on your own website with out asking anybody if they own the rights to it (to which they'll often respond 'e're not sure, but if we do, the answer is No.'), I can't imagine anybody would raise a fuss since you're not making a profit and it's not worth the legal fees. BUT if the shit ever did hit the fan, and especially if Emerald Arms becomes as popular as your 50,000+ downloaded-album Devil's Dreamworld...well, I think your IP lawyer's got the right idea that that's not a good situation to be in.

A great irony is that Woody Guthrie's song was adapted from the Folk Cannon, but his lyrics (and arrangement, according to TRO) was solidified by a copyright that still endures, so that cultural commons is off limits. Damn right Woody must be rolling over in his grave -- long after all of these artists have passed away, their estates and publishing rights live on, instead of their musical tradition.

I think a (non-)profit-sharing agreement would be a much better way of dealing with things than a statutory rate. But unfortunately, the way things are set up, there's more money to be made with a statutory rate and suing people who don't abide, than by allowing people to reinvigorate this music that'd otherwise be lost.
RandyBurke on 10/12/09 at 05:07PM
Steven, In the early days of the US, copyright was 14 years plus another 14 IF the copyright holder bothered to file for an extension. I believe copyright should now be 21 years PERIOD, and after that, it falls into the public domain. If an artist is going to make money off a song, movie, book, etc. it will most likely occur in those first 21 years. Also- the majority of the money made will be made in those first 21 years, anyway ! A 21 year rule would mean everything created before 10/12/88 could today be used freely. If a filmmaker wanted to make a documentary about the 60s or 70s, he or she could use anything (film, songs, TV shows, etc.) from the 60s/70s and overdub his or her own commentary. Pre-1988 movies could be re-dubbed for comedic effect (like "What's Up, Tiger Lilly?" by Woody Allen) Some people may ask, "What about the artist who NEVER made any money way back in 1987 off his or her song?" Well, chances are, if you've not made money by now off it, you'll probably never make any money off a song from the past. The bright side is, an up and coming band could use something by an unknown artist (they WOULD be required to officially list the author), and when they have a hit with such a public domain song, the artist (still struggling) would be able to make money off his or her new (post 1988) stuff. Also, the big five monopolistic record companies could not keep regurgitating all the old stuff (Led Zep, Beatles, etc.) to make tons of money- in fact, all that stuff could be reproduced and given away or sold by independent CD manufacturers with NO royalty payments due! This is an idea I have had for a long time, and in your case if it were in effect, you'd not have any worries about your current project. GOOD LUCK TO YOU- Randy Burke
cindycandy1 on 10/13/09 at 04:15AM
just looking around
MrJM on 10/13/09 at 10:51AM
"I hope eventually I'll be able to include these elements as I originally intended."

May I suggest "civil disobedience"?

-- MrJM
llee611838 on 10/13/09 at 11:03AM
I actually think the original period of 14 years plus 14 if the copyright is extended is a good idea. That way Disney could keep Steamboat Willie from ever falling into the public domain if they absolutely must, but they're not preventing all other works from becoming part of the cultural commons in the process. As a writer, I've always found the argument for strong, long-term copyrights to be faulty. It is supposed to provide an incentive to the creator to create more, but so often it is not the creator who is the beneficiary of the copyright. It's often someone who bought it as a product somewhere along the line. I also find that lawyers are often overly cautious when it comes to copyright issues and tell you not to do things that should really be fair use. The bottom line is that in a lawsuit, the important thing is not who is right but who can afford the legal fees.
RandyBurke on 10/13/09 at 12:33PM
llee611838 - Actually, as I understand it, the first US copyright law was 14 years and another 14 if the holder bothered to file an extension. After that, the work fell into the public domain. So, Mickey Mouse (Steamboat Willie) would've fallen into public domain in 1956 if we still had that. KLinNYC- Yes, the first copyright law was "The Statute of Anne" enacted in 1709 in Great Britain. It specified 14 years and that was it. THANKS to everyone that has responded. I would love to see the idea of a 14, 21, or even 28 year copyright period get into the public consciousness- Randy Burke
llee611838 on 10/13/09 at 12:39PM
I understand, but my point is that I'd be willing to let Disney lock up Mickey Mouse if they could do it without locking up all the rest of the cultural commons in the process.
Stevenarntson on 10/13/09 at 12:43PM
Thanks to everyone who has commented so far! I worked on that essay for quite awhile, and I wondered if anyone would be interested. The discussion here is already causing me to think in different ways about the subject.

Civil disobedience has crossed my mind, but I'm an awful coward, always thinking of the worst!

llee611838, I'd like to hear more about your book on Guthrie.
llee611838 on 10/13/09 at 12:46PM
It's actually about the upside to being broke. (Finding alternative ways to think about money) It's coming out in March. I actually did write a book about Arlo Guthrie, though-- or about the church where Alice's Restaurant took place, called Arlo, Alice and Anglicans. So I have a lot of Guthrie connections.
RandyBurke on 10/13/09 at 12:52PM
llee611838- Thanks for responding, sorry I misunderstood your post. That introduces to me another idea. Perhaps each author as an individual (in this case, Mr. Walt Disney and his heirs) could have ONE work, character, song, film, etc. that could be entitled to a longer period, say 50 years, 100 years, or whatever- but only one. You can bet that in 10 or so years, Disney will once again get somebody like Sonny Bono to sponsor another copyright extension, unless there is copyright reform before then. THANKS- Randy Burke
jkelley63 on 10/13/09 at 05:40PM
I wonder if you have to pay a fee to print "This Machine Kills Fascists" on something. Now wouldn't that be ironic.
Stevenarntson on 10/17/09 at 09:31AM
Mr. Stallman agreed to allow me to post his email message as a comment here. The above blog entry was modified in accordance with his suggestion. -Steven

I've been campaigning against the injustices of copyright law for
20 years, so I sympathize fully with the point of your article.
I would like to point out a small detail which could backfire,
in the hope that you will agree and wish to change it.

Since the article is about copyright, these words

I met with an intellectual property lawyer

effectively identify copyright with "intellectual property". It's not
unusual to do that, but it is an error, since "intellectual property" includes
other laws which are totally different.

Other articles which are about patent law do the same thing, and
effectively identify patents with "intellectual property". And yet
other articles, about trademarks, do the same thing and effectively
identify trademarks with "intellectual property". The result is that
people get the idea these laws are similar, that they are one single

The resulting confusion distracts people from real issues (such as the
one you've raised), which always arise out of one specific law. That
only helps the companies that you're criticizing.

Copyright law interferes with the folk process, but patent law and
trademark law have no effect on it. (They raise other, totally
different but important issues.)

To lead the public to think about the issue, it's crucial to teach
them not to confuse these laws. So I've concluded we should reject
the term "intellectual property" and never use it.

Could you please help avoid this confusion, by saying "copyright"
rather than "intellectual property" when what you're talking about is
copyright law and its effects?

See for more
explanation. Ever since I reached that conclusion, I have found
it very easy to avoid the term.
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