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ARSCLIST  February 2004

ARSCLIST February 2004

Subject:

Re: Sound Recording Licensing Questions

From:

Jon Noring <[log in to unmask]>

Reply-To:

Jon Noring <[log in to unmask]>

Date:

Mon, 9 Feb 2004 22:22:09 -0700

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Dismuke asked:

> Any information in this area would be appreciated.

Regarding the copyright status of sound recordings in the U.S., refer
to the relevant section in the following article I wrote which David
Rothman at TeleRead included in his blog:

http://www.teleread.org/blog/2003_10_26_archive.html#106768614604144566

Here's that section reproduced (you will find answers to your other
points by carefully reading the rest of the article -- I believe the
legal analysis is mostly correct -- Larry Lessig read a draft and
suggested a couple changes which were made in the final copy):

"First, it is important to realize that all U.S. sound recordings
recorded before February 15, 1972 are surprisingly not covered under
Federal Copyright statutes in the U.S. Why is this so? I won't go into
the gory details, but essentially it was a long-standing oversight by
Congress that was not fixed until the 1970's. (Note that song
compositions, lyrics, and arrangements, which are separate from sound
recordings, have been covered by U.S. copyright law for quite a long
time, but that is a separate issue which does not contribute to the
situation being discussed in this article.)

"Does this mean that the pre-1972 U.S. sound recordings are 'Public
Domain' in the U.S.? Certainly not! Federal copyright law normally
preempts any and all State-level laws--but not in this case. Instead,
these recordings have been given copyright-equivalent protection by a
complex web of State laws. And here nearly all the State legislatures
(with the possible exception of Vermont) have been busy over the years
granting quite strict State-level protection to these sound recordings
using various and clever legal mechanisms under common law and
statutory law, such as State copyright laws (some of which appear to
have perpetual terms!), anti-piracy laws, unfair trade practice laws,
etc., etc. This sad state of affairs will not mercifully end, thanks
in part to Sonny Bono, until February 15, 2067 (by Section 301(c) of
Title 17), when Federal Copyright law finally takes effect and
preempts State law protections of sound recordings; the early
recordings will then revert to the Public Domain in the U.S. (as Title
17 currently stands). This includes the earliest commercial recordings
released in 1889, a whopping 178 years later! And a paltry 130-140
years of copyright-equivalent protection for the "Golden Era" of
recorded music: those recordings from 1925, the start of modern
electrical recording, to 1935."

(the online version of my article includes links to supporting
documentation.)

Enjoy!

Jon Noring

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