What’s the Deal With Pre-1972 Sound Recordings?


Abbey RoadEven if you’re just a casual observer of copyright news (or a reader of the 3 Count column here on Plagiarism Today), there’s a good chance that you’ve been hearing more mentions about pre-1972 sound recordings.

There are several cases ongoing including, Grooveshark’s battle in New York State Court over its streaming of pre-1972 tracks, members of The Turtles filing a potential class action lawsuit against SiriusXM over such recordings and, finally, SoundExchange also suing SiriusXM, in part, over pre-1972 recordings, this alleging underpayment of royalties.

This has led many to wonder what the significance of pre-1972 sound recordings is and why they are receiving such special attention in the courts, in the legislature and even from the U.S. Copyright Office.

The answer is surprisingly complicated and to understand what exactly is going on we have to go back in time, to before 1972, and understand a little bit about how copyright law worked previously.

In understanding that, we can learn how a large number of very significant works, were left behind even as copyright law moved forward and are currently in a bizarre state of limbo.

The History of Pre-1972 Sound Recordings

Before the Copyright Act of 1976, which took effect in 1978, the copyright law that was in effect in the U.S. was the Copyright Act of 1909.

The Copyright Act of 1909 had many differences between the current law but one of the biggest was that Federal copyright protection was far from automatic in a new work. Creators, before publication, had to meet certain criteria, to ensure that a work had full protection.

This caused many pre-1972 works, including the film “Night of the Living Dead”, to slip into the public domain on accident.

Another change was to automatically apply copyright law to new types of creative works so long as they met a minimum level of requisite creativity and were fixed into a tangible medium of expression.

Prior to 1978, every time a new technology would be discovered that wasn’t mentioned explicitly in the act itself, either Congress would have to pass an act to include the new technology under federal copyright law or, as was the case with software in the 1960s, the Copyright Office would have to make a determination as to how the law applied to it.

However, this doesn’t mean “unprotected” works were in the public domain. They, instead, were protected by a hodgepodge of state laws and common law, that often provided protections similar to Federal copyright law and, in some cases, well beyond it.

The most important “gap” in federal copyright protection involved sound recordings. Since such recordings were rare in 1909, they were not mentioned in the law. Though compositions were protected and the law put specific limitations on reproducing those compositions through machines (Piano rolls were popular at the time), it said nothing about the copyrightability of sound recordings.

That was how it remained until 1972. With the rise of cassette tapes making illegal copying easier than ever, Congress passed the Sound Recording Amendment of 1971, which placed sound recordings under the federal copyright system.

However, the law only applied to works created on or after February 15, 1972. Pre-1972 sound recordings were to remain under state law until 2067, when they would lapse into the public domain, regardless of what the state statute says.

Why Congress did this is unclear, so much so that even the U.S. Copyright Office doesn’t understand the decision, saying in a recent report (PDF) that “Congress did not articulate
grounds for leaving pre-1972 sound recordings outside the federal scheme and there is very little information as to why it did so.”

However, in recent years this has gone from a copyright oddity to a potentially serious legal issue, one that has the potential to threaten any site, service or company that makes use of pre-1972 sound recordings.

The Problem with Pre-1972 Sound Recordings

The issue is fairly straightforward. Copyright law has undergone a tremendous number of changes since 1972, the largest of which were the aforementioned Copyright Act of 1976 and the Digital Millennium Copyright Act, which took effect in 1998.

However, those are federal laws and, thus only apply (at least clearly) to works under federal copyright protection. Pre-1972 sound recordings, for the most part at least, are stuck under the same set of laws they were under in 1972,

Though the list of potential issues is nearly endless, there are two key ones before the courts right now:

  1. Safe Harbor: The Digital Millennium Copyright Act provides “Safe Harbor” to hosts of content online, protecting them when users upload infringing material. But does the DMCA apply to pre-1972 sound recordings? The answer is unclear and is being discussed in the Grooveshark case.
  2. Compulsory Licenses: Modern federal copyright law provides for a compulsory license to stream sound recordings over the Web and satellite radio. This is done without copyright holder permission but requires paying a royalty set by the Copyright Royalty Board. Is this applicable to pre-1972 sound recordings? That is what the SiriusXM cases are about.

Though the compulsory license issues are important to companies, like SiriusXM, that use those licenses to stream music, it’s the safe harbor issues that will likely have the broadest implications.

If pre-1972 sound recordings are not covered under the DMCA, then that would be a very significant gap in safe harbor protections. Though a host would have no liability if a movie, a book or a modern song were uploaded (provided they met the other requirements of the law), it would be possibly liable for any pre-1972 sound recording that was uploaded.

For example, any Metallica track uploaded would not be a huge legal issue for a host but any Beatles track could open up a site to liability in any relevant state court. That’s exactly what is going on in the Grooveshark case, though Grooveshark is also defending it’s standing with the DMCA in federal court as well.

And it is state courts that will be hearing these cases, as with both Grooveshark and The Turtles, and the cases will be tried under a mixture of laws that, often times, have very different rules.

In short, for those who seek consistency in copyright law, pre-1972 sound recordings have the potential to be a major disruption.

Fixing the Problem

The simplest solution to address the issue, and the one supported by the U.S. Copyright OFfice, is to simply bring pre-1972 sound recordings into the federal copyright system.

Unfortunately, that is much easier said than done.

For one, many groups are opposed to the federalization of pre-1972 works, most notably the RIAA. The reasons for this are many but two key issues is that any federalization would likely reduce the copyright term on the works and may open up such works to copyright termination, where a creator can terminate a previous agreement after a set number of years.

These issues and others give copyright holders of pre-1972 sound recordings very legitimate concerns that need to be addressed (or at least weighed). But even if the voices were unanimous on federalizing these works, there are still many challenges including:

  1. Registration Requirements: Current copyright law requires timely registration to obtain full benefits of copyright protection. Pre-1972 works will clearly not have been registered timely under the law.
  2. Ownership Issues: State laws and federal copyright law have different rules on ownership that would need to be ironed out.
  3. Copyright Terms: Currently, copyright on pre-1972 sound recordings isn’t set to expire until 2067. A new term would likely have to be set.
  4. Copyright Termination: Currently, pre-1972 sound recordings are not eligible for copyright termination (though compositions are), how would that be handled?

While the U.S. Copyright Office has recommendations for all of these things in its report (PDF), it is far from the final word as it can only make suggestions to Congress, which is yet to even take up the issue of pre-1972 sound recordings directly.

In short, any solution, federalized or not, is likely a long way off.

Bottom Line

Right now, in the U.S., there are very much two copyright systems. The federal one, which protects most copyrighted works, and the state/common law one that protects pre-1972 sound recordings. That second one is, in and of itself, a mashup of a variety of laws.

The decision to set up this system forty years ago was an odd one, an anomaly in U.S. copyright history that, for the most part, has focused on streamlining and consolidating copyright protection.

So what happens next is difficult to say. The court cases above will likely set the tone for how the law is approached moving forward.

Needless to say, these cases are ones that should be watched as their outcomes could have a serious impact on the debate about pre-1972 sound recordings and that debate will, inevitably, impact any legislation on the topic.

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