By Erach F. Screwvala
Clearing the rights to older sound recordings made prior to the time of federal statutory protection under the Copyright Act can prove to be challenging. Two reasons exist that create the difficulty. First, it may be difficult to determine the status of the copyright in and to a literary work. Amendments to the Copyright Act, most recently the Sonny Bono Copyright Term Extension Act, (the "Sonny Bono Act") have extended copyrights that might otherwise be in the public domain. Second, no federal statutory protection exists for older sound recordings made prior to February 15, 1972. [i] However, the absence of federal statutory protection does not mean that the sound recording is in the public domain. Rather, for older sound recordings, one must look to state and common law to determine what, if any, rights exist. In addition, a work that may be in the public domain in its jurisdiction of creation will not necessarily mean that it will not enjoy some protection elsewhere.
Sound recordings are protected by two distinct copyrights. First, the underlying composition is protected as a literary work.[ii] A copyright in a literary work simply refers to sheet music or other notation system that allows someone to create music. Second, the sound recording that embodies the literary work is also protected. If the sound recording was fixed[iii] after February 15, 1972, the recording will be protected under the statutory provisions of the Copyright Act.[iv] The lack of statutory protection does not automatically mean that the sound recording is in the public domain and may, in certain circumstances, add an additional layer of uncertainty concerning the rights.
Determining the status of a statutory copyright depends on many different factors. For a post-February 15, 1972, sound recording, where an individual obtains the copyright, it will expire seventy years after his or her death.[v] For anonymous, pseudonymous, or works made for hire, the copyright will expire on the earlier of ninety-five years from the date of publication[vi] or 120 years from creation.[vii] The same periods apply to literary works created after January 1, 1978.[viii]
For literary works created but not published or subsisting in copyright before January 1, 1978, copyright protection exists as of January 1, 1978 and continues for the period set forth above for works created after January 1, 1978.[ix] Since it was conceivable that an unpublished work would fall directly into the public domain at the time protection was extended, the Copyright Act provided that the earliest an unpublished or unregistered copyright will expire is December 31, 2002, or December 31, 2047, is published on or before December 31, 2002.[x]
The status of works subsisting in copyright protection as of January 1, 1978, depends upon whether the work is in its initial or renewal period. For works in their initial period as of January 1, 1978, copyright protection "shall endure for twenty eight years from the date it was originally secured."[xi] All such works are entitled to a renewal period of sixty seven years after expiration of the initial term.[xii] For works in their renewal period on October 27, 1998, the effective date of the Sonny Bono Act, the copyright shall endure for ninety five years from the date of the original copyright.[xiii] Any work that had fallen into the public domain as of the effective date of the Sonny Bono Act, remains in the public domain.
The Copyright Office is required to maintain records concerning the status of individual authors.[xiv] Individuals having an interest in a copyright may file a statement indicating either the date of death of an author, or that the author is alive as of a particular date.[xv] The Copyright Office may also maintain records of an author's death through other sources.[xvi]
This provision was added to address the potential difficulty in determining the status of copyrights where the term is based on the life of an author.[xvii] Therefore, in addition to the record keeping requirement, the Copyright Act presumes that on the earlier of ninety-five years from the date of publication or 120 years from the date of creation, an author has been dead for at least seventy years, unless the Copyright Office has a record on file to the contrary.[xviii] This provision is important because "reliance in good faith" upon the absence of any records of the author's date of death serves as a "complete defense to any action for infringement."[xix]
In the case of sound recordings fixed prior to February 15, 1972, the lack of federal statutory protection requires a more detailed analysis. In 1973, the Supreme Court ruled that the Copyright Act did not preempt state law protection of pre-February 15, 1972 sound recordings.[xx] Thus, there may be state based rights - whether by state statute or common law - that will still protect sound recordings fixed prior to February 15, 1972.
An analysis of what state law or common law rights may exist first requires determining the appropriate state law to apply. Oddly enough, the choice of law has nothing to do with where the recording was made. Rather, courts will apply the law of the state in which the recording was made. Rather, courts will apply the law of the state in which the recording has been copied. [xxi] As discovered in the Naxos case, this has the potential of providing protection to works that had fallen into the public domain in the jurisdiction of their creation.[xxii]
It is readily apparent that the myriad amendments to the Copyright Act over the years, including extensions of copyrights and creation of new protections for previously unprotected work can create substantial uncertainty in determining the status of an older sound recording. Not only does one have to determine the current status of a copyright to the literary work, but it may be very difficult to determine the status of a copyright in and to a sound recording, since the analysis will likely turn on questions of state law - which will undoubtedly vary from state to state. Unfortunately, no hard and fast rules can be provided and each project will have to be analyzed independently.
This article was originally published in the Association for Sound Recorded Collections Journal, Vol. 36, No. 1 (2005)
[i] 17 U.S.C. §104A(h)(6)(C)(ii).
[ii] 17 U.S.C. §102(a)(1). A literary work is defined as "works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, tapes, film, discs, or cards, in which they are embodied. 17 U.S.C. §101.
[iii] A work is "fixed" when "its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
17 U.S.C. §101.
[iv] 17 U.S.C. §102(a)(7).
[v] 17 U.S.C. §302(a). Where the copyright is held by two or more authors as a joint work, the expiration is based upon the date of death of the last surviving author. 17 U.S.C. §302(b).
[vi] Publication is defined as "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending." 17 U.S.C. §101.
[vii] 17 U.S.C. §302(c).
[viii] 17 U.S.C. §302.
[ix] 17 U.S.C. §303.
[x] Id. On its original enactment, the copyright was to have expired no earlier than 2027 assuming publication had been made. The Sonny Bono Act extended this for an additional twenty years.
[xi] 17 U.S.C. §304(a)(1)(A).
[xii] 17 U.S.C. §§304(a)(1)(B), (a)(1)(C). Entitlement to the renewal term depends upon the copyright holder complying with specific renewal requirement. 17 U.S.C. §§304 (a)(2)(A), (a)(2)(B).
[xiii] 17 U.S.C. §304(b).
[xiv] 17 U.S.C.§302(d).
[xv] Id.
[xvi] Id.
[xvii] See, Notes of Committee on the Judiciary, House Report No. 94-1476.
[xviii] 17 U.S.C.§302(c).
[xix] Id.
[xx] Goldstein v. California, 412 U.S. 546 (1973). As of February 15, 2067, however, Federal law will preempt all state law and common law copyrights. 17 U.S.C. 301(c).
[xxi] Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 91 (2d Cir. 1998). The rule is derived from general conflicts principles applied to tort claims. In essence, the law to be applied is the law where the wrong occurred. Obviously, this arises only in the context of an action for infringement.
[xxii] In the Naxos case, the work in dispute had fallen into the public domain in the United Kingdom. Depending on how the Court of Appeals rules on the issue, it is possible that the recordings at issue in that case will be protected under New York law.
