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Trying to Determine Rights in Pre-1972 Sound Recordings
Audio recordings of speech, musical instruments or any other sounds created before Feb. 15, 1972, are treated very differently from other recorded sounds under U.S. law. Each of the 50 states is free to apply its own rules to the protection of audio sound recordings made before Feb. 15, 1972, and may continue to do so for the next 54 years. As a consequence, the scope of protection for pre-1972 sound recordings is inconsistent from state to state, often vague and sometimes difficult to discern. In contrast, sound recordings made on and after Feb. 15, 1972, are governed by the U.S. Copyright Act, which imposes uniform treatment nationwide. The discrepancy is explained by the fact that Congress never saw fit to bring domestic pre-1972 sound recordings within the scope of federal copyright protection. (Certain pre-1972 sound recordings of foreign origin were given U.S. federal copyright protection beginning in 1996 under the 1994 Uruguay Round Agreements Act in order to comply with U.S. treaty obligations.) As a result, online radio stations, documentary film makers, archivists and others who copy, publicly perform, excerpt or adapt such sound recordings are exposed to uncertainty and confusion.
Sound Recordings'Copyright History
The history of pre-1972 sound recordings was traced at length in Capitol Records v. Naxos of America, 4 N.Y.3d 540 (2005), in which the New York Court of Appeals clarified its position on the distinct status of these works. The history was also reviewed in detail in a 2011 report by the U.S. Copyright Office, which recommends adding pre-1972 sound recordings to the system of federal copyright. See, “Federal Copyright Protection for Pre-1972 Sound Recordings.” And it stands to be revisited again and again, particularly in the context of digital media ' as in a lawsuit recently filed against the online streaming service Sirius XM by five major record labels (Capitol Records v. Sirius XM Radio, BC520981 (L.A. Sup Ct.)), and another by SoundExchange, the organization authorized to collect and distribute digital performance royalties only for sound recordings protected by U.S. copyright. (SoundExchange v. Sirius XM Radio, 1:13-cv-01290-RJL (D.C.D.C.).) Both disputes illustrate difficulties encountered by digital services in using pre-1972 sound recordings.
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