A Gwich'in love song, passed down for generations through oral tradition, has become a copyright roadblock for Tsiigehtchic, N.W.T., band the Hummingbirds — preventing them from releasing their latest album One Weekend in June for months.
"It just became stuck in the mud," said Bob Mumford, the band's bassist.
The song Goodbye Shaanyuu is one of the tracks on the album. It's a folk song from Fort Yukon, Alaska that dates back to the mid-1900s.
But the record company dealing with the band is holding off the official release of the album, says Mumford, until the band solves a copyright issue with the song — which was written by a Gwich'in woman named Annie Cadzow, who is believed to be dead.
"I don't want to give it up right now, because it's a really unique song," said Mumford. "It's very different from all the other songs from the CD."
The band has three options: 1) Find Annie Cadzow — or her family members — and get permission to use the song in their album. 2) Find out if Cadzow has died more than 50 years ago, which puts the song into the public domain. Or 3) Just release the song in hopes that no one will come forward and sue, but this is a non-option for the band out of respect for Cadzow and Gwich'in history.
The band is working with researchers in Alaska who are helping track down Cadzow's only living daughter who's said to be in her late 80s.
But Mumford says there are many questions surrounding folk music and ownership.
The song has evolved over the years, says Mumford. Lyrics were added, melodies altered — almost to the extent of sounding like a different song.
"The song as we're doing it, it's quite different from the original," said Mumford. "When does the song become another song?"
"It gets really confus[ing]," he said.
Copyright and folk songs
"Being confused about this is not at all unusual," says Michael MacDonald, an ethnomusicologist and professor of music at MacEwan University in Edmonton. He studied folk music in Canada.
MacDonald said that while humans have been creating and sharing songs for thousands of years, the music industry as we know it is only a little over a century old.
"These are still really new issues," he said.
MacDonald said historically, folk music was widely believed to be "national treasure" — or owned by everybody.
Until the idea of copyright came along.
"The practice of exerting copyright is actually pretty easy. The person that transcribes the oral performance, exerts ownership on it," he said. "So whoever makes the recording has copyright on it."
In 1974, Folkway Records released a recording of the song Goodbye Sheenyaa, crediting Annie Cadzow as the author of the song.
That's when Cadzow's song was put on the map or "fixed," says Safwan Javed, a musician and entertainment lawyer with Taylor Oballa Murray Leyland LLP in Toronto.
When a song is "fixed"— recorded or written down — that's when copyright law applies. Before then, the folk song could be "just a conjecture," its existence questionable, under common law.
But there's 'moral rights'
But there's something called "moral authority," said MacDonald. That's when the family of the creator can exercise their "moral rights" over the song.
So if Cadzow or her family were to go to court, "she has moral authority of the material and can exert that."
That's why the band must track down Cadzow's daughter, to receive permission.
"The common practice these days is to do everything you can to find the estate [family] and if you can't, then make sure you document that you did everything you can," said MacDonald.
Javed recommends the band request help from the Canadian Musical Reproduction Rights Agency that is the administrator of licensing rights in Canada.
"They may have other avenues for you to potentially resolve this, especially considering [the song has] already been released once."
But that may be unnecessary if the song becomes public domain, 50 years after Dec. 31 of the year the creator of the song dies, says Javed.
As for the question of whether the evolution of a song makes it a new song, MacDonald said copyright laws will likely prevail — as happened in the Blurred Lines case in 2015 when the children of Marvin Gaye successfully sued Robin Thicke and Pharrell Williams for plagiarizing their father's song.
A song for a soon-to-be ex-husband
Tell me goodbye, shake my hand, don't cry for me.
Cadzow sang those very words to her husband, before leaving him for another man. It was a song of reconciliation.
"These love songs hold such great power, I think, in any society," said Alestine Andre, the lead singer of the song for the Hummingbirds.
She says she first heard it around 20 years ago.
"People remember them and pass the song on, and then other people listen to it, and add on their own song."
Copyright and claiming ownership is less important for her people, says Andre.
"Gwich'in people don't think to put ownership or copyright on any song creation, but copyrighting seems to be important for people coming in from the south," wrote Andre in a letter to Mumford, expressing her thoughts about the band's search for Cadzow.
Meanwhile, the band is "just waiting," said Andre.
"It has been a long, tedious search."