Mike brought up an important distinction bewteen "abandoned" and
Abandoned material is that which has been infringed upon with no
response from the copyright holder (with the understanding that the
copyright holder had or should have had knowledge of the infringement
and had means to respond in court). IMHO one need only look at the large
number of jazz, country, and blues unauthorized reissues on European and
domestic labels available for sale in the US for the last 30+ years to
find examples. And just because they're PD in Europe doesn't mean the
"bootlegs" are automatically allowed to be distributed in the US, as
we've seen with the Metropolitan Opera recordings. The judge that ruled
on Capitol v. Naxos seemed to say that abandonment was a significant
factor to be taken into account in copyright violation rulings. Whether
or not this opinion stands is another matter.
Non re-issued and uninfringed material, such as obscure Columbia
cylanders, are still fully protected under current law until 2067. As we
all know, this is an absurd catch-22. These recordings lack the
commercial value to support a large enough "bootleg" (European or
domestic) operation that the copyright holders would even notice. They
also lack the commercial potential for the copyright holders to bother
with requests to license them. A friend of mine tried once to license
some 1901-1910 Victor sides and was turned down summarily because he
could not garauntee 10,000+ sales! Something that breaks this logjam is
needed before the recordings deteriorate beyond recall.
I think Mike's "title fee" idea is quite good, as long as the cost
was under $5 or so per recording. This way the companies would be making
more money off their old recordings than they are now, wouldn't have to
bother with the cost of licensing, yet would retain their current
rights. Considering their clout on Capitol Hill, a proposal like this
seems far more likely evade their corporate veto.
The idea is to distinguish abandoned from unissued material. My
is that most of those with rights to material of interest to us are
that they have those rights - or even those recordings. Only if the
brought to their attention (e.g., by an "infringing" release) would
take notice. Why Capitol initiated this contest is hard to imagine, but
this stage I am delighted that they did.
Note that the numbers you are suggesting are quite substantial on the
we're dealing with. $1 may be too low, but reality for a 78- or 45-rpm
would be no more than $10 unless there were a commitment for a
release. Few sides other than those of the "superstars" would be worth
or anything approaching it.
IMHO, there should be a corollary: any title abandoned by that
should require some sort of "title fee" comparable to the renewal fee
be needed for someone to issue the title without infringement. Needless
say, a reissue of twenty sides that carried a title fee of $20000 would
unthinkable; even $200 would decrease interest substantially. That fee
would not only address the costs of the paperwork but would also make
proposal far easier to negotiate with holders of rights.
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