Copyright and Historical Sound Recordings: Recent Efforts to Change U.S. Law
Brooks, Tim, Notes
Constantly expanding copyright laws in the U.S. have made it increasingly difficult for archives to preserve our past effectively, and for the public to legally access it. This is especially true in the field of historical sound recordings. Most people are surprised to learn that for recordings made prior to 1972 there is no public domain, no fair use, and very few exceptions for preservation. This article looks at current guidelines for the use of copyrighted historical recordings; some important recent developments in the effort to change this situation; and what scholars and institutions can do now to help lessen the restrictions. Particular attention is given to the efforts of the Association for Recorded Sound Collections (ARSC), which is seeking five specific changes in U.S. copyright law to benefit preservation and public access to historical recordings.
It is no secret that expanding copyright laws have complicated the work of scholars and archivists in recent years. Nowhere is this truer than in the field of recorded sound. This article will look at copyright as it affects sound recordings, and will cover three main areas: basic guidelines for the use of copyrighted recordings, some important recent developments, and what scholars and institutions might do to help lessen the restrictions on the use of early recordings.
GUIDELINES FOR THE USE OF COPYRIGHTED RECORDINGS
Recordings are covered by two basic copyrights, one for the music (or text), and another for the recording itself. The rules for the music are pretty simple. Just remember the year 1923. Anything published before 1923 is in the public domain. Nearly everything published after 1 January 1923 is copyrighted. The length of that copyright is ninety-five years, or in some recent cases, the life of the author plus seventy years.
There are some post-1923 works in the public domain, including certain unpublished works, some foreign works, works published without copyright notice, and works whose copyright was not renewed. However these are exceptions and not the norm. In most cases if it is post-1923, it is under copyright. (1)
Unfortunately the situation regarding the recording copyright is very different. Many are surprised to learn that virtually every recording ever made in the U.S. is protected, from the very first commercial recordings made more than a century ago, around 1890, to the present day. There is no public domain for recordings and there will not be one until one is established in the year 2067-maybe. For recordings made before 1972, which includes most historical recordings, there is also no fair use, and few provisions for archival preservation. Recordings are subject to a far more restrictive copyright regime than any other type of intellectual property.
The reason is a little-known provision in the 1976 copyright act which brought post-1972 recordings under federal law but left everything made before that year under state law. (2) Here is where it gets complicated. There are fifty different sets of state law, all of them different, and for a long time there was no road map to these laws. However the last few years have brought two important studies, one by June Besek of Columbia Law School and another, which still is in progress, by Peter Jaszi of American University. (3) These studies reveal that in most states pre-1972 recordings are covered not by statute but by "common law copyright," which is derived from judges' rulings and the results of trials--essentially, "judge-made law." Nearly all consider copyright in recordings to be absolute and perpetual, with no public domain and little or no provision for fair use or archival preservation.
This was made explicit in the 2005 Capitol v. Naxos decision in New York State, which held essentially that the public has no rights, all rights belong to the copyright holders. (4) The judges based their decision on the common law of seventeenth-century English kings. …