Pre-1972 Sound Recordings

Posted on 12/01/2000
In Intellectual Property



by Robert W. Clarida

Sound recordings first fixed before February 15, 1972 — a category which includes the collective recorded genius of the Beatles, Charlie Parker, Hank Williams and (almost) Elvis Presley1 — are generally not eligible for federal copyright protection, but must be protected, if at all, under the disparate laws of the individual states.  This column will describe some of the issues surrounding ownership, duration and “restoration” as they apply to these sound recordings.

Ownership

Pre-1972 sound recordings can be protected either by state statute or by common law.  Under common law, the featured performer or bandleader was often held to own the exclusive right to reproduce the recorded performance, but that right could be conveyed to the record producer by express or implied agreement.  Such agreement could be found simply from the physical transfer of the original master recording. See, e.g., Ingram v. Roberts, 57 F.2d 65, 66 (2d Cir. 1932)(L. Hand, J.)(noting that any arguable copyright held by performer Enrico Caruso in master sound recordings “passed with the property in them”).   Thus, sound recordings were subject to the same general rule often applied to paintings and literary manuscripts, i.e., that transfer of the original tangible object embodying the work was held to effect a transfer of the reproduction rights as well.  See Pushman v. New York Graphic Soc’y Inc., 287 N.Y. 302 (1942)(abrogated by statute 1966); Ripley v. Findlay Galleries, Inc., 155 F.2d 955 (7th Cir. 1946)(applying Illinois law).

The various state record-piracy statutes echo the common law rule, equating ownership of the tangible master recording with ownership of the exclusive reproduction right in the recorded performance. Under   § 5/16-7 of the Illinois Code, for example, it is a Class 4 felony to make commercial use of recorded sounds without the consent of the owner, and the owner is defined as “the person who owns the master sound recording on which sound is recorded and from which the [unlawfully] transferred recorded sounds are directly or indirectly derived.”  The New York and California statutes define “owner” in substantially the same way.  Ownership of state law rights in pre-1972 sound recordings can thus be established much more informally than ownership of a federal copyright, which is independent of the tangible object in which it is embodied (§ 202) and which cannot be transferred without a signed writing (§ 204).

Duration

The federal Copyright Act, which generally preempts state law protection equivalent to copyright, carves out an exception for pre-1972 sound recordings. Under 17 U.S.C. § 301(c), as recently amended by the Sonny Bono Copyright Term Extension Act (P.L. 105-298), the common-law copyright in these recordings, and state statutes offering copyright-like protection, will not be preempted by federal law until February 15, 2067.  The potentially indefinite term of state law protection for these works will therefore end in 2067, 95 years after the recordings first became eligible for federal copyright in 1972.  In California, current law provides for an end to state statutory protection in 2047, Cal. Civ. Code § 980 (a) (2), although well in advance of that date the legislature will probably extend the term to correspond to the additional twenty years of  protection now permitted under the Sonny Bono Act.

“Restoration”

Despite the general rule precluding federal copyright protection for pre-1972 sound recordings, the 1994 GATT/TRIPS amendments, codified at §104A of the Copyright Act, extend protection to such recordings when they (a) were first published in a country that is a signatory to the Berne Convention, the WIPO Performances and Phonograms Treaty, or is a member of the WTO, and (b) were not subsequently published in the United States during the 30-day period following that initial publication. §104A(f)(6)(C)-(E). Consequently, these foreign recordings are protected by federal copyright despite their fixation prior to 1972, and their term of protection is the same as it would have been had they been protected under U.S. federal law ab initio, i.e., 95 years from publication.  Virtually all works “restored” under this provision will therefore lapse into the public domain sooner than domestic recordings, which will enjoy state law protection until 2067 regardless of their initial publication date.


1 Late Elvis recordings, beginning with “American Trilogy” (recorded live in Las Vegas on February 17, 1972) are subject to federal statutory protection.  For what it’s worth.

© 2000  Cowan, Liebowitz & Latman, P.C.

Disclaimer:

This the information provided in this article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult with a lawyer concerning your own situation and any specific legal questions you may have.