Wikilegal/Copyright Status of Sound Recordings Fixed Prior to February 15 1972
Copyright Status of Sound Recordings Fixed Prior to February 15, 1972
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There has been a discussion on Commons, and the Wikimedia Foundation has received an inquiry via Jimmy’s talk page regarding whether sound recordings fixed prior to February 15, 1972 (“pre-1972 sound recordings”), which are generally not covered by United States federal copyright law, are in the public domain and can therefore be posted to Commons. Although the legal department cannot provide legal advice on specific cases, we hope that providing our general thoughts of the current state of copyright law in this field will be helpful to the community.
In order for a work to be posted to Commons, it must be freely licensed or in the public domain in the United States and in the source country of the work. Unfortunately, as discussed below, most pre-1972 sound recordings created in the United States are not in the public domain. Therefore those seeking to upload these works to Commons need to determine whether they are freely licensed.
Copyright Act of 1976 and pre-1972 sound recordings
Sound recordings, defined 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”, were not covered by federal copyright until the 1970s. The Copyright Act of 1976 (“the Act”) was passed on October 19, 1976 and provided federal copyright protection for any sound recording fixed on or after February 15, 1972.
In order to create a unitary copyright regime, this Act explicitly preempted state law; however, section 301(c) of the Act provides that for pre-1972 sound recordings, state statutory and common law will be the source of copyright protection until February 15, 2067. On that date, pre-1972 sound recordings will come under the federal copyright regime and will all enter the public domain. (This general rule does not apply to foreign works which were in the public domain as of January 1, 1996 due to the owner’s failure to comply with United States copyright formalities. Under the Uruguay Round Agreements Act, these works became eligible to receive federal copyright protection under specific circumstances.)
Although the current administration considered extending the applicability of federal copyright laws to pre-1972 sound recordings, ultimately these works were not brought under federal protection. Thus, to determine whether a specific pre-1972 sound recording is under copyright protection, an individual usually must look to state law.
State law and pre-1972 sound recordings
The protection offered by states varies and can come from criminal laws, civil statutes, and/or common law. Nearly all states have criminal piracy laws that, at a minimum, prohibit unauthorized duplicating and distributing recordings for commercial purposes. Most states have at least a few exemptions, whether for radio or TV broadcasting or use by nonprofits, but these vary by state.
A number of states, such as California, also provide protection for pre-1972 sound recordings through civil statutes.
Finally, most states provide protection through tort law -- usually under a theory of common law copyright. Historically, common law copyright protected unpublished works. Once a work became published, it was protected by federal law and common law no longer applied; however, because pre-1972 sound recordings are ineligible for federal protection, some states amended their laws to cover these works. Unfair competition, misappropriation, and conversion are other tort causes of action that have been applied to pre-1972 sound recordings in many states, such as California, Illinois, Michigan, New Jersey, and North Carolina.
What this means for the Wikimedia community
As described above, state laws vary widely, and it may be impossible to determine what use of a pre-1972 sound recording would be acceptable in every state. Theoretically, a state can protect these sound recordings until 2067; even if states have terminated or will terminate protection before that time, if a use goes beyond the border of those states, it is no longer permissible. Although pre-1972 sound recordings are under the domain of state copyright law, some of these works may still be posted to Commons if they have been freely licensed by the owner. Therefore, pre-1972 sound recordings should be analyzed on a case-by-case basis by the community.
- Register of Copyrights, Federal Copyright Protection for Pre-1972 Sound Recordings 14 (2011) [hereinafter Register].
- Copyright Act of 1976, 17 U.S.C. § 101.
- Copyright Act of 1976, 17 U.S.C. § 301(c).
- Register, supra note 1, at vii.
- Register, supra note 1, at 17-19.
- Register, supra note 1, at vii.
- Register, supra note 1, at 20.
- California, Michigan, and New York are some of the states that have criminal record piracy statutes. California’s statute prohibits: “Knowingly and willfully transfer[ing] or caus[ing] to be transferred any sounds that have been recorded on a phonograph record, disc, wire, tape, film or other article on which sounds are recorded, with intent to sell or cause to be sold, or to use or cause to be used for commercial advantage or private financial gain through public performance, the article on which the sounds are so transferred, without the consent of the owner.” Cal. Penal Code § 653h(a)(1) (West 2011). Michigan’s statute provides: “[A] person without the consent of the owner, shall not transfer or cause to be transferred sound recorded on a phonograph record, disc, wire, tape, film, or other article on which sound is recorded, with the intent to sell or cause to be sold for profit or used to promote the sale of a product, the article on which the sound is so transferred.” Mich. Comp. Laws Ann. § 752.782(1) (West 2011). New York Penal Law prohibits: “[K]nowingly, and without the consent of the owner, transfer[ing] or caus[ing] to be transferred and sound recording, with the intent to rent or sell, or cause to be rented or sold for profit, or used to promote the sale of any product, such article to which such recording was transferred.” N.Y. Penal Law § 275.05 (McKinney 2011). The U.S. Copyright Office has provided a list of other state criminal statutes.
- For example, California’s statute states: “This section does not apply to any not-for-profit educational institution or any federal or state governmental entity, if the institution or entity has as a primary purpose the advancement of the public's knowledge and the dissemination of information regarding America's musical cultural heritage, provided that this purpose is clearly set forth in the institution's or entity's charter, bylaws, certificate of incorporation, or similar document, and the institution or entity has, prior to the transfer, made a good faith effort to identify and locate the owner or owners of the sound recordings to be transferred and, provided that the owner or owners could not be and have not been located.” Cal. Penal Code § 653h(h) (West 2011). Michigan’s statute provides exceptions for the transfer of sound connected with radio or television broadcast transmission, archival, library, or educational purposes, and for personal use. Mich. Comp. Laws Ann. § 752.785 (West 2011). New York’s statute does not apply to “(a) any broadcaster who, in connection with or as part of a radio, television, or cable broadcast transmission, or for the purpose of archival preservation, transfers any such recorded sounds or images; or (b) any person who transfers such sounds or images for personal use, and without profit for such transfer.” N.Y. Penal Law § 275.45(1) (McKinney 2011).
- Cal. Civ. Code § 980(a)(2) (West 2011). See also Ala. Code § 13A-8-85 (1975); N.C. Gen. Stat. § 14-433 (2012).
- Register, supra note 1, at 30.
- For example, New York has adapted its definition of “publication” so that all sound recordings are considered unpublished, and therefore under common law copyright. Register, supra note 1, at 31.
- Register, supra note 1, at 31.
- Register, supra note 1, at 47.