Old Songs Made New–Copyright Office Endorses Federal Protection of Pre-1972 Recordings

Richmond Indiana became home to one of the great recording studios when the Star Piano Company and Gennett Recording opened in the early twenthieth century. See, waynet.org; starrgennett.org. There was no federal copyright protection for recordings then, just a hodgepodge of state statutes and court decisions. Despite the success and fame of Gennett and other music pioneers, Indiana was one of the only states to not adopt a statute criminalizing piracy of sound recordings.

When federal law was first amended to give copyright protection to sound recordings made on or after February 15, 1972, the state hodgepodge was left in place to govern the previous century of sound recordings — and it still governs them today.

Responding to direction from Congress two years ago, the Copyright Office on December 28 submitted its report on extending federal copyright protection to pre-1972 recordings. Full report at copyright.gov/docs/sound/pre-72-report.pdf. It is an impressive 214 page history and analysis of law, business and technology going back to the first known recording in France in 1860, and cites Louis Armstrong as one of the great artists whose pre-1972 recordings continue to have commerical value. The first of his recordings was probably a history-making session of diverse artists at Gennett.

The report favors federalization of copyright protection for pre-1972 works. Most of us think about commercial records as the recording industry, but the Office was persuaded by the relatively small percentage of all recordings which commercial efforts represent. Motivated by the need to preserve deteriorating media from wax cylinders to steel wires, the report finds that copyright protection will give preservation incentive despite commerical record companies having a poor preservation record overall. The incentives are seen as encouraging benefit private collectors, scholars, and libraries.

The vast body of non-commercial records includes the work of ethnographers, radio broadcasts, and countless private recordings. If federal protection is adopted, it will take the problem of orphan works–where rights owners can’t be found–to a whole new level of difficulty. Yet the report sees that as better than the status quo, and the patchwork of state law will largely be eliminated as a multiplier of the difficulty.

The report also finds that public access to pre-1972 recordings will be increased in tandem with preservation. Whatever benefit comes to the world of knowledge, however, it will probably be the entertainment content versus internet technology world where the the largest battles are fought by people who can afford the fight.

The report recommends that whoever owned a recording a moment before the new legislation is adopted will remain the owner. Determining who that is could vary from one state to another. But in the commercial recording world, that most likely will be a record company if the work has continuing value.  With the length of copyright protection a sore subject since the Sonny Bono amendement extensions in 1998, the Copyright Office proposes an outer limit of 2067 for any of the new rights. That is a very long time for rights that didn’t exist.

Yet, remembering the Constitutional goal of promoting the useful arts by securing limited rights to authors, we will soon enter the first round of authors and their heirs trying to exercise their rights to terminate past grants of their copyrights to record companies. The report offers a glimpse of the additional challenges which will result if recordings before 1972 suddenly come with termination rights too. If the artists or their descendants can first benefit from old recordings in the relatively near future, more than fifty years of new protection may be easier to justify.

Not only Louis Armstong, but Frank Sinatra, Elvis Presley, the Beach Boys and hundreds of other great artist’s recordings will become newly minted intellectual property ripe for disputes over dollars, the non-academic subject of most copyright litigation. Those battles can only occur, however, if the ongoing war over freely copying, archiving, and offering old works versus having to license them is resolved in a way that allows authors protection for what they created.

About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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