There really are state anti-piracy laws that apply to pre Feb. 72 recordings. When sound recording copyright was instituted in 1972, these laws were allowed to remain in effect for another 75 years (now 95) after which point they become null and void. California's and New York's are the ones most often litigated, New York's in the case of Naxos v. Capitol (https://en.wikipedia.org/wiki/Capitol_Records,_Inc._v._Naxos_of_America,_Inc.), probably the most significant case on pre-72 recordings in recent history.
From: Association for Recorded Sound Discussion List [mailto:[log in to unmask]] On Behalf Of John Haley
Sent: Tuesday, May 23, 2017 4:28 PM
To: [log in to unmask]
Subject: Re: [ARSCLIST] Another copyright question
Steve, I don't know what "protected" means. Something is either subject to copyright or it isn't. Law is one thing; assumptions are something else.
Orphan labels are a very interesting topic. But that is not really a copyright concern, at least under federal law--virtually all the orphan labels are for recordings way before 1972. The state law analysis is possible but usually messy. Still, because it is messy (uncertain), it serves as a deterrent that really should not be there.
Karl, as you no doubt know, many institutions have an overlay regarding copyright law coming from a separate (and very important) copyright rule about "fair use." Archives and libraries are often in a position to claim it, as an exception to otherwise valid copyright law. Personally, I wish they would be more aggressive about expanding it, but they generally don't want to. Fair use is unrelated to PD.
On Tue, May 23, 2017 at 3:42 PM, Karl Miller <[log in to unmask]>
> Putting stuff up on the web...While my label is very small...I have
> found instances where our recordings were posted on YouTube. I
> contacted YouTube and had to convince them that we owned the
> recordings. The poster had to remove the recording. We have no money
> to initiate legal action against the poster.
> Yet, in the instance of an institution posting without copyright
> clearance...as my father the lawyer used to say, "you don't sue anyone
> unless they have the money to pay you." In my experience at an
> institution...the University of Texas at Austin...the University
> developed a policy that if you, as an employee violate copyrights in
> any way, the University will not pay your legal expenses and you as an
> individual will be held responsible. Interestingly, when I was hired
> by the University, I was given instructions to do something which I
> believed to be in violation of the copyrights. I refused and the issue
> ended up in the Office of General Counsel. My unit had to stop that particular activity.
> As for this particular instance, you might want to contact the
> internet archive as they seem to posted materials which could be
> considered "problematic" with respect to the copyrights.
> Tread lightly.
> On Tue, May 23, 2017 at 11:44 AM, Steven Smolian <[log in to unmask]>
> > As far as I know, just about everything from 1877 to the present is
> > protected in one way or another. There are orphan labels with
> > uncertain ownership.
> > In my opinion, putting commercial sound recordings on a web site has
> > a greater potential down than upside. Other opinions may differ.
> > There is a choice to be made between what you can probably get away
> > with and the probable liabilities, should things turn nasty. People
> > do this all
> > time. People acting as employees of institutions are putting their
> > institutions at risk. Institutions have lawyers on staff to advise.
> > My opinion.
> > Steve Smolian
> > -----Original Message-----
> > From: Association for Recorded Sound Discussion List
> > [mailto:[log in to unmask]] On Behalf Of James Roth
> > Sent: Monday, May 22, 2017 12:53 PM
> > To: [log in to unmask]
> > Subject: [ARSCLIST] Another copyright question
> > Hello again
> > I have an LP made by A.B.C. (J. Naftali Records). Of singer Albert
> > (The Yiddish Golden Voice of)
> > I need to know if there's any chance of copyright issues.
> > Might there be a list of labels that are definitely not copyrighted
> > anymore.
> > Of course, there's are the artists that might still be alive and
> > copyrighted.
> > I don't intend to make copies or sell them, just to put it on a free
> > website.
> > Regards,
> > Ben