One should be careful when claiming "fair use" on a musical performance. The brevity of the segment used does not carry as much weight as the purpose of the usage itself. See this definition of fair use, which I always refer to, on the Stanford website.
 
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-a.html
 
Cary Ginell
 

> Date: Tue, 26 Jun 2012 11:33:39 -0700
> From: [log in to unmask]
> Subject: Re: [ARSCLIST] Recordings of 1920s 78rpm Records - Public Domain?
> To: [log in to unmask]
> 
> Sarah,
> 
> The experts should weight in on this approach, but if you will only be 
> using a short segment of any performance, it probably falls under the 
> "fair use" umbrella and is therefor OK. The length of the allowed 
> segment is, I believe, quite short.
> 
> On 6/26/2012 8:48 AM, Sarah Cole wrote:
> > Thank you all for your very helpful advice, it's much appreciated.
> >
> > I perhaps should have made it clear that this isn't a proper movie, more of
> > a compilation of 1940s footage, and predominantly for use in schools or
> > suchlike - it will used by a charity and generate no revenue that I can
> > think of.
> >
> > It seems somewhat absurd that the recordings are public domain in the UK
> > and Europe, but not in America. Out of interest, is it only America where
> > they aren't public domain, or would it vary from country to country?
> >
> > David, I hope you'll forgive my ignorance - this is really an area I know
> > very little about, but to clarify - do I have to clear the
> > composition through a performance rights agency because although the
> > performance in question is public domain, the composition itself is not?
> >
> > Best, Sarah
> >
> > ---
> > On 26 June 2012 15:35, David Lewis <[log in to unmask]> wrote:
> >
> >> Jubilee Stomp is a Duke Ellington composition, and it is still copyrighted
> >> -- along with the rest of the catalog -- by Mills Music Inc., which has an
> >> office in the UK. The Duke recorded this piece for four different labels.
> >> The Vocalion version belongs to Universal, and the Victor and Okeh versions
> >> by Sony/BMG in the US. The Cameo/Pathé version is in a grey area; that is
> >> part of the ARC legacy that passed to CBS in 1938 but some of that property
> >> was traded to Decca as part of their purchase of Brunswick; no one really
> >> knows what went where in that case in terms of masters, or even what from
> >> Cameo/Pathé may still survive in the master space, or survived even in
> >> 1938. Probably nothing; even in the 1960s, Columbia was using commercial
> >> 78s as their source for material from that label in reissues. Most
> >> clearances from that time regarding that label, however, were made through
> >> CBS.
> >>
> >> In the UK, all of this is moot, as for the time being these are all well
> >> behind the copyright curve. But you'd still need to clear the composition
> >> through a performance rights agency.
> >>
> >> David "Uncle Dave" Lewis
> >> Lebanon, OH
> >>
> >> On Tue, Jun 26, 2012 at 9:49 AM, Wolf, James L <[log in to unmask]> wrote:
> >>
> >>> Sarah,
> >>>
> >>> Tiger Rag is a 1917 composition and thus in the Public Domain. The
> >> early
> >>> 1929 Brunswick recording by Duke Ellington and His Orchestra is owned by
> >>> Universal. Barring any further extentions of copyright terms, it will
> >> enter
> >>> the Public Domain in 2067. However, in Europe, U.K. and Canada, this
> >>> recording is already PD.
> >>>
> >>> James
> >>>
> >>>
> >>> All opinions are personal and do not reflect Library of Congress policy
> >> or
> >>> position.
> >>>
> >>> -----Original Message-----
> >>> From: Association for Recorded Sound Discussion List [mailto:
> >>> [log in to unmask]] On Behalf Of Sarah Cole
> >>> Sent: Tuesday, June 26, 2012 9:07 AM
> >>> To: [log in to unmask]
> >>> Subject: [ARSCLIST] Recordings of 1920s 78rpm Records - Public Domain?
> >>>
> >>> Hi all,
> >>>
> >>> I was hoping someone here might be able to help me with a query relating
> >>> to the copyright status of digital recordings taken from 1920s 78rpm
> >>> records, with particular reference to Duke Ellington's early sound
> >>> recordings.
> >>>
> >>> I have downloaded some 1920s pieces of his for a project I am working on;
> >>> I'd like to use these songs as the soundtrack to a film aimed at
> >> educating
> >>> children about life in the 1940s, which would likely end up
> >>> publicly-viewable online but not make any money. All of the pieces I have
> >>> chosen are listed as public domain on the Internet Archive or elsewhere.
> >>> These entries, for example, are two of the pieces I would like to use:
> >>> http://archive.org/details/DukeEllington-TigerRag and
> >>> http://funfunfunmedia.com/2010/12/duke-ellington-jubilee-stomp-mp3.
> >>>
> >>> My problem is this: these websites say that these recordings are public
> >>> domain, but I am struggling to see how they could be, given that they
> >> were
> >>> recorded around (I believe) 1928. My understanding was that music
> >> recorded
> >>> after 1923 was almost certainly copyrighted in the US. Does the fact that
> >>> these recordings are made from 78rpm records affect their status? And
> >> does
> >>> my being UK-based make any difference?
> >>>
> >>> I would very grateful indeed if anyone could offer any advice on this
> >>> matter, as I've been looking everywhere for an answer with no luck.
> >>>
> >>> Many thanks,
> >>>
> >>> Sarah
> >>>
> 
> -- 
> *Pete Tinker*
> West Hills, CA 91307
> 818-three/four/six-5213
> 818-six/nine/four-5213 /(cell)/