Who Owns Pre-1972 Sound Recordings?
Robert Clarida
The Intellectual Property Strategist
November 13, 2000
Sound
recordings first fixed before Feb. 15, 1972 -- a category that includes
the collective recorded genius of the Beatles, Charlie Parker, Hank
Williams and (almost) Elvis Presley -- are generally not eligible for
federal copyright protection but must be protected, if at all, under
the disparate laws of the individual states. This article describes
some of the issues surrounding ownership, duration and GATT/TRIPS
"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 Section
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 (Section 202) and which cannot
be transferred without a signed writing (Section 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
Feb. 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 20 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 Section 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.
Robert Clarida is an attorney at Cowan, Liebowitz & Latman, P.C., New York.
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