Recorded sound is a very complicated area in U.S. copyright law.  Prior to 1972, sound recordings were not eligible for Federal copyright protection.  There were a hodge-podge of state laws that applied, which will probably result in a hodge-podge of copyright statuses for all sorts of works.  Music publishing, however was protected, which means that some recordings will have publishing rights protected long after the reproduction rights have lapsed.  The LOC recently had a public comment period for a move to "regularize" copyright protection for pre-1972 works.  Many are afraid that this will mean the imposition of post-"Sonny Bono Act" copyright terms on previously lapsed materials.  See
Hope this helps...

Steve Greene
Office of Presidential Libraries
National Archives and Records Administration
(301) 837-1772
>>> Sarah Cole <[log in to unmask]> 6/26/2012 9:06 AM >>>
Hi all,

I was hoping someone here might be able to help me with a query relating to
the copyright status of digital recordings taken from 1920s 78rpm records,
with particular reference to Duke Ellington's early sound recordings.

I have downloaded some 1920s pieces of his for a project I am working on;
I'd like to use these songs as the soundtrack to a film aimed at educating
children about life in the 1940s, which would likely end up
publicly-viewable online but not make any money. All of the pieces I have
chosen are listed as public domain on the Internet Archive or elsewhere.
These entries, for example, are two of the pieces I would like to use: and

My problem is this: these websites say that these recordings are public
domain, but I am struggling to see how they could be, given that they were
recorded around (I believe) 1928. My understanding was that music recorded
after 1923 was almost certainly copyrighted in the US. Does the fact that
these recordings are made from 78rpm records affect their status? And does
my being UK-based make any difference?

I would very grateful indeed if anyone could offer any advice on this
matter, as I've been looking everywhere for an answer with no luck.

Many thanks,