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Suppose artist A wanted to include a song to the tune of a children's nursery rhyme, such as Pretty Little Dutch Girl. This song was written in the 1940s, so if the composer was Australian, it would probably be covered by the rule of 70 years after death. The latest song from the list of nursery rhymes is "On Top of Old Smoky", recorded by The Weavers in 1951. Some are from the 16th century and so will probably have no copyright.

How could artist A gauge which of these songs are in the public domain, which ones have copyright, and which are in a grey area in between?

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The burden rests on A to determine that the work is not protected by copyright, and there is no fool-proof registry where you can look up a particular work. One form of proof would be finding a copy of the song published in the 18th century. It might be possible to establish that the work is no longer protected using expert testimony (e.g. a musicologist who could establish that the song existed at some early point in time). As an example, the song "Misirlou" was registered in the US by Nikos Roubanis in 1941, though the song was already in existence in the 1920's, and there was no legal challenge to his copyright. From the legal perspective, that is who has the copyright, except in Greece where copyright is shared with Michalis Patrinos. One might be able to challenge a copyright registration if it is proven that the song could not have been composed by the registrant (establishing via manuscript evidence that it was written 100 years earlier). There is no way to advance-test the legal strength of your evidence that the song was created long enough ago, and if a work is registered, that makes the job even harder.

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  • What if one finds a printed version of a public domain song which is almost identical to a later one? How much of a change would be required to re-establish copyright? For example, would the hymn "Good Christian friends, rejoice" be under copyright even though the text is identical to the centuries-old "Good Christian men, rejoice" save for the 20th-century substitution of "friends" for "men"?
    – supercat
    May 10, 2021 at 22:05
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I complement @user6726's answer with two more pieces of information.

Was the song published before 1922?

Anything published after 1922, such as the popular Wheels on the bus which is on that list, may be under automatic copyright in the US and may not be worth finding evidence for. This post calls the "Mickey Mouse curve":

In 1976, Congress authorized a major overhaul of the copyright system assuring Disney extended protection. Instead of the maximum of 56 years with extensions, individual authors were granted protection for their life plus an additional 50 years, (which was the norm in Europe). For works authored by corporations, the 1976 legislation also granted a retroactive extension for works published before the new system took effect. The maximum term for already-published works was lengthened from 56 years to 75 years pushing Mickey protection out to 2003. Anything published in 1922 or before was in the public domain. Anything after that may still be under copyright.

Even then, it's a grey area, for example the melody of "Wheels on the bus" is from "Here we go round the mulberry bush", which is in the public domain (see the point below and this post).

Is the song on this list?

This list of children songs in the public domain is a reasonable indication that a song is in the public domain in the USA, though to be sure, you would need to order the reprint and confirm the melody:

This list is based on USA Copyright Law and is intended only as a help in researching public domain music. This list is NOT sufficient documentation that music is in the Public Domain. To prove PD status in the USA, you MUST find a published copy of the song with a copyright date of 1924 or earlier. Our PD Sheet Music Reprints are exact reprints of books and sheet music published in 1924 or earlier and include music, lyrics, and complete original copyright information. Some of these songs may not be PD in countries other than the USA.

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    Another complication is that many camp songs, especially those with verses of the form "The ____ goes ____", encourage adaptation and extension, and in many cases the first person to come up with a version of the song may have no idea whether they invented it themselves or may have heard it from someone else, or whether it might coincidentally already exist. For example, the song "Old MacDonald" has probably been performed with hundreds or thousands of differently ordered lists of animals, and it would be impossible to fully establish authorship for most.
    – supercat
    May 10, 2021 at 22:17

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