Copyright & Fair Use

By Brooks, Tim | ARSC Journal, Fall 2010 | Go to article overview

Copyright & Fair Use


Brooks, Tim, ARSC Journal


It took a tenor sax solo to catch their attention, but an important media outlet has joined the call to bring pre-1972 recording under federal law and pass an "orphan works" bill. Under the headline "Free That Tenor Sax," The New York Times editorialized on 21 August 2010 that the discovery by the National Jazz Museum in Harlem of previously unknown off-air recordings from the 1930s and '40s of such greats as Coleman Hawkins, Lester Young, Billie Holiday, and Herschel Evans was reason enough to revisit the restrictive laws that keep these treasures out of the hands of the public. Although the Museum now has the recordings and is digitizing them, it cannot make them available because of the tangle of state copyright laws applying to pre-1972 recordings. Perhaps someone should bring a saxophone to the next congressional hearing on this subject.

As of this writing (August 2010) we await the launch of the Copyright Office inquiry into bringing pre-1972 recordings under federal control (the study was required by ARSC-sponsored legislation). We understand that they are gearing up for the study now, and will have it completed by the March 2011 deadline. Stay tuned.

In the following essay Copyright & Fair Use Committee member Bruce Epperson brings us up to date on recent court cases that have implications for sound recordings.

Fair Use & Copyright Update

When Tim reminded me that a new "Copyright & Fair Use" column was coming up, I first replied that there wouldn't be much to write about, because I hadn't heard any news. Boy, was I wrong! As I write this in mid-August, there has been a mini-blizzard of relevant new copyright cases that relate to music or records in just the last few weeks--so many that I can't fit them all in, and will have to put some off until the next issue.

The headliner this issue is the re-appeal of the Golan case in the Tenth Circuit. I reported on this case fairly extensively back in 2009. (1) As you may recall, a court in Colorado had declared unconstitutional a federal law that returned some musical works already in the public domain back to copyright status. The government appealed, with an outcome I find disturbing. I am sure the plaintiffs will petition to the Supreme Court, but I believe it is very unlikely the high court will take the case.

In case you find Golan a little too abstract, I will balance it out with a good, solid, practical case. We've all seen those promo CDs sent out by the record companies marked "Property of Blah-Blah Records. Resale or Transfer is Prohibited and Punishable by Law." Can they do that?

Golan, et al. v. Holder, U.S. Tenth Circuit Court, Nos. 09-1234 & 09-1261 (21 June 2010)

Facts: Several plaintiffs sued the United States challenging two acts, the Copyright Term Extension Act (CETA) and the Uruguay Round Agreements Act (URAA). Ultimately, the dispute was narrowed down to one URAA provision known as "Section 514." Its purpose is to achieve international consistency in copyright protection. It restores U.S. copyrights in foreign works that have fallen into the public domain for technical reasons, primarily failure to comply with copyrighting formalities. It does not restore copyrights to foreign works that entered the public domain due to normal expiration of term. Section 514 extends some "safe harbor" provisions to parties that had used these works while they were in the public domain. These are known as "reliance parties." However, the safe harbor is not permanent and in most cases eventually requires the payment of royalties.

In 2004, a federal district court in Denver granted the government summary judgment on the Section 514 issue. (2) Mr. Golan and his associates appealed, and in 2007 the Tenth Circuit reversed, finding that Section 514 raised a legitimate first amendment controversy. It remanded the case back to the Colorado district court to determine whether Section 514 actually interfered with the plaintiffs' protected first amendment rights. …

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