One of the findings that gave me the idea to extend this whole “Heyse Latke” Hanukkah thing way past the limits of reason – if you’ve been following along for the past five days, you now have a recording, the cheat sheet, a lead sheet, a scratch track, and a bit on the “Jerusalem Ridge” tune with which the Paint Branch Ramblers pair it – was finding in my files a long forgotten notepad document dated 1/09/08, on which I jotted down some notes about registering “Heyse Latke Kalte Latke” with ASCAP, the professional society that represents the copyright interests of songwriters and publishers.

I’d been a member of ASCAP since 2006, and I was in their database for partial credit on the Tangleweed song “Last Call Waltz,” but this was my first attempt to register a song I’d written. That’s right: “Heyse Latke Kalte Latke” was the first song – after more than 25 years of writing them – that I’d publicly claimed as my own. Go ahead: do a search for it here.

And it proved to be an interesting exercise as a first claimed song, mostly because of its weird mix of original and public domain material.

On ASCAP, 50% of the composing credit for any given song goes to the writer(s) and 50% goes to the publisher. “Heyse Latke” was self published (i.e., I do my own photocopying for the rest of the band). But I had to have a publishing interest I could name. Now, to become a member of ASCAP in the first place, you have to be able to say that some song you’ve written or published is available commercially. I had been able to do so as a writer because “Last Call Waltz” was on Tangleweed’s Where You Been So Long CD. But to register my publishing company, “All Wrote Publishing,” I had to wait until the old Viper CDs I’d sent in to CD Baby were ready, which they were by late January of 2008.

So with All Wrote registered as a publishing concern, I would now get 50% of whatever royalties “Heyse Latke” might generate through radio play or through being covered by some other band commercially (this works by statutory licensing, and it’s one of the few areas of copyright that makes any clear sense — if you cover someone’s song, they have to agree to let you do it, in exchange for 9.1 cents for every copy sold).

Now I had to figure out how to divide up the 50% writing credit. Half of that — i.e., 25% of the total credit — would go to me as the composer of the melody line. This left 25% for the lyrics (which I talk about in an earlier post). I had taken the lyrics from what was apparently a stock verse in common circulation in Yiddish folksongs at least as far back as the 19th century, but had changed the first line from “hot tea cold tea” to “hot latke cold latke” (because I liked the resonance with an old time song the Paint Branch Ramblers were doing at the time, “Hot Corn Cold Corn”). So I ended up claiming another 12.5% of the credit as a lyricist (for writing one new word, twice), and donating the final 12.5% to the public domain. So 87.5% for me, 12.5% for the folk tradition.

Technically, since I’m just sampling one part of one refrain, it looks like I could have claimed the lyrics all to myself. But doesn’t the public domain need a break? But does it get one?

I think, basically, that 12.5% just disappears into the ether. When ASCAP collects from the radio stations, or bars that play music, or Musak licensers, or whatever, I don’t think they actually donate the money that isn’t claimed by a songwriter or publisher to some enrichment program for the public domain. Though maybe they should, right? Funding some lobbying group that might have worked to fight legislation like the 1998 Sonny Bono Copyright Term Extension Act that, creepily, extended the term of copyright for another 20 years to the dead who apparently, zombie-like, weren’t satisfied with feeding on the brains of the living for simply 50 years after death?

I won’t get into the whole how-weird-is-copyright-in-the-first-place thing here. I’ll just quote – freely, since it’s public domain – what Thomas Jefferson wrote long ago, and which has been quoted ad nauseum by critics of intellectual property,* a nausea to which I’ll add my bit of technicolor yawn:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

And so to the public domain – the shamash that illuminates the rest of creation – let’s all raise a Hanukkah cheer. L’Chaim!

* Truly. A Google search for “”If nature has made any one thing less susceptible” turns up 14,200 results, the great bulk of which (at least if the first 20 results I looked at are any indication) are from your basic IP critique.