Re: date of public domain for old recordings - was Re: A Yiddish World Remembered

[BarMusProd <BarMusProd...>]

Dear Sandra and Listers,

We just went through a long discussion of public domain in the U.S. on 
Orchestralist and I was one of the contributors--but I am not a lawyer. My 
notes are below.

In a message dated 8/19/02 12:08:16 AM, sandralayman (at) earthlink(dot)net 
writes:

>Original Message -----
>
>From: "Sandra Layman" <sandralayman (at) earthlink(dot)net>
>
>To: <jewish-music (at) shamash(dot)org>
>
>Sent: Tuesday, August 13, 2002 12:09 AM
>
>Subject: date of public domain for old recordings - was Re: A Yiddish World
>
>Remembered
>
>
>
>Fred Blumenthal wrote:
>
><<
>
>I would be very interested in what the intellectual property lawyer has
>to
>
>say about the age at which a recording becomes public domain.
>
>>>
>
>
>
>
>
>Dear Fred,
>
>
>
>The lawyer in question is Robert C. (Bob) Cumbow of Graham & Dunn PC in
>
>Seattle. He also does some pro-bono work for Washington Lawyers for the
>Arts
>
>and has helped me in the past.
>
>
>
>In May he wrote me:
>
><<
>
>I frankly don't see how ANYONE can own the copyright
>
>in a 78rpm recording made in 1920, since anything published before 1923
>is
>
>in the public domain, and sound recordings weren't even protected by
>
>copyright until 1976!
>
Well, yessss--but this gentleman, for being a lawyer, needs to do some more 
research as he has his dates wrong. (Another lesson that lawyers generally do 
not know much about copyright law--get an experienced *copyright lawyer* if 
you need one for decisions like this.)

He is right that until *1972* (not 1976) no separate copyright protection at 
all was given to sound recordings[!] because the music thereon could not be 
*visually perceived*.  Until 1972, it was up to the States to pass their own 
record-piracy laws, and many did[!]. (Sorry to keep inserting [!], but this 
was a big surprise to me as well.) As of February 15, 1972, Federal law was 
amended to cover sound recordings by copyright published on or after that 
date. Your lawyer also incorrectly mentions 1976--and that date is referring 
to the massive revision of the copyright law that was completed in 1976 (it 
is called informally the 1976 law), but *not ratified* until January 1, 
*1978*.

But to answer your question, sound recordings made before February 15, 1972, 
will continue to be covered by State anti-piracy laws until February 15, 
2047[!]. I am following the advice of William S. Strong, the author of _The 
Copyright Book: A Practical Guide_ (it used to be and may still be used at 
the Columbia University School of Law) who states: "My advice is to regard 
any musical work published in a pre-1973 recording as being still protected 
by copyright, regardless of whether it bears a copyright notice." However, we 
are talking about a pre-1923 recording. Anything pre-1923 (95 years from the 
date of publication was the copyright coverage pre the 1978 copyright law) is 
in the public domain and therefore is fair game for any of us to use it in 
any way.
>
>
>See below. The 1923 cutoff applies only to the U.S.

Yes, that is correct--we are only addressing U.S. copyright law here.

>I'm realizing that I'm still a tad fuzzy on one thing: whether a record
>
>label that publishes a reissue CD (thus a compilation or anthology) can
>
>claim copyright over the original 78 rpm the reissue used, or just over
>the
>
>digital version that appears on the CD. I would certainly think it would
>be
>
>only the latter. So, if someone owns a 78-rpm copy of the recording, there
>
>shouldn't be any problem using it -- I *think*!
>
That is absolutely correct *if* you are talking about 1923 or earlier, so 
that the recording and the music on it is in public domain. After 1923, I 
would conservatively consider the work still under copyright (as Mr. Strong 
advises above) as the State where the recording was originally issued may 
have anti-piracy laws in place. 

But if you are talking about *any* 78 rpm recording, with or without a 
copyright notice, you must be sure that it is in public domain before you can 
use it in your own compilation. Otherwise you must obtain permission from the 
copyright holder for the music and lyrics (probably the publisher, maybe the 
estate), as well as from the copyright holder for the sound recording 
(probably the record label). 

As a reminder, putting a copyright on a public domain reissue does not place 
the music and/or the sound recording itself into copyright. Something that 
has fallen into the public domain in the U.S. remains in public domain for 
all of us to use as we see fit. You can only copyright any *original* 
additions, e.g.: the specific order that you use on the CD, the CD itself as 
an original compilation, your graphics and accompanying booklet, new lyrics 
if you are "rapping" or singing along with the recording, etc.--but the music 
and the original sound recording that it was taken from, if it is pre-1923 
and in the public domain, cannot be "re-copyrighted."

Best wishes,
Steve

Steve Barnett
Composer/Arranger/Producer
Barnett Music Productions
BarMusProd (at) aol(dot)com 

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