A Survey of State Copyright Law

By Cowart, Tammy W.; Gershuny, Pam et al. | Southern Law Journal, Fall 2014 | Go to article overview

A Survey of State Copyright Law


Cowart, Tammy W., Gershuny, Pam, Hawk, Gwenda Bennett, Southern Law Journal


I. Introduction

State legislatures and Congress have enacted numerous anti-piracy copyright statutes protecting sound recordings. Technological developments in the early 1970s made duplication of sound recordings both easy and inexpensive,1 allowing record pirates to make nearly $100 million dollars for sales of duplicated records in 1971.2 In 1972, Congress gave federal copyright protection to sound recordings, but all sound recordings made before February 15, 1972 remained protected under state law.3 Current law mandates that all pre-1972 sound recordings remain protected under state law until February 15, 2067.4 At that time, federal law will preempt all state copyright law protection, and all pre-1972 sound recordings will enter the public domain.5

In 2009, Congress asked the Register of Copyrights (Copyright Office) to study the "desirability and means" of extending federal copyright protection to all sound recordings fixed before February 15, 1972. The Copyright Office report on Federal Copyright Protection for Pre-1972 Sound Recordings recommended that sound recordings made before February 15, 1972 be brought into the federal copyright scheme.7

This paper examines the persistence of state copyright laws, and the extent to which they still exist in light of federal copyright law to further understand how those state laws will be affected by possible preemption. Specifically, the scheme and penalty of unauthorized duplication and bootlegging statutes are examined from all fifty states. We further address areas where the Copyright Act would preempt these state laws.

II. History

The Copyright Act of 1976 defines "sound recordings" as "works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied." However, sound recordings were not a category of works regulated in the previous Copyright Act of 1909.9 The Sound Recording Act of 1971 sought to remedy this omission and created three categories of sound recording "piracy:" 1) piracy, 2) counterfeiting, and 3) bootlegging.10 Piracy is the unauthorized duplication and sale of sounds contained in a legitimate recording like a compact disc (hereinafter "CD") or cassette tape. Counterfeiting is the unauthorized duplication and distribution of not only recorded sounds but also the original label artwork, trademark, and packaging. Bootlegging is the unauthorized recording of a live or broadcast performance that is not legitimately available, for example that of a live concert or studio out-take that is not intended for release.13 United States federal law and most states' laws prohibit all three types of piracy and treat them as criminal offenses.14

The sound recording industry consists of several players, which include primarily record labels, but also disc replicators and manufacturers, artists, producers, engineers, and even record stores. Sound recording piracy has long adversely affected the recording industry, but the combination of technological development and weak laws and/or enforcement has enabled, and even encouraged, record pirates to engage in criminal activity. This accounts for the annual loss of billions of dollars in displaced sales; in fact, one in three music discs sold is piratical.15 In considering federal legislation entitled the Piracy and Counterfeiting Amendments Act of 1982 (hereinafter "the 1982 Act"),16 the Senate Committee on the Judiciary agreed with Department of Justice testimony that:

Piracy and counterfeiting of copyrighted material, the theft of intellectual property, is now a major white-collar crime. The dramatic growth of this problem has been encouraged by the huge profits to be made, while the relatively lenient penalties provided by the current law have done little to stem the tide. …

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