Overview[]
Pre-1972 sound recordings, that is, sound recordings made before 1972, are not subject to federal copyright law. They are protected under a patchwork of state statutory and common laws from their date of creation until 2067 (2047 in California).
Historical background[]
In 1976, when Congress passed the Copyright Revision Act, it created a unitary system of copyright, by bringing unpublished works (until then protected by state law) under the federal copyright law, and preempting all state laws that provided rights equivalent to copyright.[1] However, it explicitly excluded state laws concerning pre-1972 sound recordings from the general preemption provision, allowing those laws to continue in effect until 2047.[2] That date was later extended by the Copyright Term Extension Act (CTEA) until 2067.[3] On February 15, 2067, all state law protection for pre-1972 sound recordings will be preempted by federal law and will effectively cease.
Federal law also protects pre-1972 sound recordings of foreign origin that were eligible for copyright restoration under the Uruguay Round Agreements Act (URAA).[4] This legislation, passed in 1994 in order to implement U.S. obligations under the TRIPS (“Trade Related Aspects of Intellectual Property”) Agreement, "restored" copyright protection to certain works of foreign origin that were in the public domain in the United States on the effective date, which for most works was January 1, 1996. Because most other countries provide a 50-year term of protection for sound recordings, generally only those foreign sound recordings fixed in 1946 and after were eligible for restoration under the URAA.
One consequence of the continued protection under state law of pre-1972 sound recordings is that there are virtually no sound recordings in the public domain in the United States. Pre-1972 sound recordings, no matter how old, can have state law protection until 2067, so that some sound recordings will conceivably be protected for more than 170 years. Even pre-1972 foreign sound recordings that were ineligible for copyright restoration because their term of protection had expired in their home countries are eligible for state law protection, at least in New York.[5] Those sound recordings that do have federal copyright protection will not enter the public domain for many years. For example, sound recordings copyrighted in 1972 will not enter the public domain until the end of 2067.
State laws[]
State law protection for pre-1972 sound recordings is provided by a patchwork of criminal laws, civil statutes and common law. Almost all states have criminal laws that prohibit duplication and sale of recordings done knowingly and willfully with the intent to sell or profit commercially from the copies. Most states also have some form of civil protection, sometimes under the rubric of "common law copyright," sometimes under "misappropriation" or "unfair competition," and sometimes under "right of publicity."
Occasionally these forms of protection are referred to collectively as "common law copyright" or "common law protection," but in fact not all civil protection for sound recordings is common law — some states have statutes that relate to unauthorized use of pre-1972 sound recordings — and a true "common law copyright" claim differs from a claim grounded in unfair competition or right of publicity.
In Capitol Records, Inc. v. Naxos of America, Inc.,[6] the New York Court of Appeals (the highest court of the state) explained that a common law copyright claim in New York "consists of two elements: (1) the existence of a valid copyright; and (2) unauthorized reproduction of the work protected by copyright." It went on to state that "[c]opyright law is distinguishable from unfair competition, which in addition to unauthorized copying and distribution requires competition in the marketplace or similar actions designed for commercial benefit."
The scope of civil protection varies from state to state, and even within a state there is often uncertainty because there are few court decisions that have defined the scope of the rights and the existence and scope of exceptions. What is permissible in one state may not be in another. This uncertainty is compounded by the unsettled state of the law concerning the activities that subject an entity to a state's jurisdiction.