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1. Introduction
The purpose of this study is to analyze copyright and related
rights issues involved in the digital preservation and dissemination
of pre-1972 commercial sound recordings by libraries and archives,
focusing on the scope of protection for those recordings and
on allowable uses, particularly for research and scholarship.
Copyright law as it relates to sound recordings and musical
compositions is extremely complex. This complexity results
both from historical and political factors and from the particular
challenges presented by new technological means of disseminating
music.
There are generally two separate works embodied in a sound
recording. The first work is the sound recording itself, that
is, the "fixation of a series of musical, spoken, or other
sounds."1 The
second is referred to as the "underlying work," which, in the
case of pre-1972 commercial sound recordings, is commonly a
musical composition (a piece of music, with or without lyrics).
It can, however, be a different kind of work, such as a humorous
monologue or dialogue, a poem, a short story, a play, or a
foreign-language lesson. Analyzing rights in a sound recording
requires consideration not only of the rights in the sound
recording itself but also of those in the underlying work.
More than one sound recording may be based on a particular
underlying work. For example, many artists have recorded Cole
Porter's Begin the Beguine. There may be more than
one underlying work for a particular sound recording. For example,
there are different poems, published at different times, that
underlie the Robert Frost recording in example 3, below.
Prior to 1972, federal copyright law did not protect sound
recordings.2 The
key date is February 15, 1972: sound recordings first fixed
in a tangible medium of expression (e.g., recorded on disc
or tape) on or after that date are protected by federal copyright
law. Sound recordings first fixed before that date ("pre-1972
sound recordings") continue to be protected by a patchwork
of state laws, civil and criminal, until 2067. There is, however,
an exception to this rule: certain pre-1972 sound recordings
of foreign origin are protected by federal copyright
law, as will be explained below. Regardless of whether sound
recordings were first fixed before or after February 15, 1972,
the underlying musical or other works are governed by federal
copyright law (unless they are in the public domain).
This report begins with a general discussion of federal copyright
law and of state laws that govern sound recordings. That discussion
is followed by a more specific legal analysis of preservation
and dissemination activities with respect to sound recordings.
To illustrate some of the legal principles and practices discussed
in this report, we will refer at various points to the following
examples of sound recordings:3
Example 1: White Christmas, recorded by Bing Crosby
in 1942. The underlying musical composition, by Irving Berlin,
was written in 1942.
Example 2: Mahler's Symphony No. 5, recorded
in 1947 by the New York Philharmonic, conducted by Bruno Walter.
Example 3: Poems by Robert Frost, as read by Robert
Frost, recorded in 1956. Frost died in 1963. The poems were
copyrighted at various times, some prior to 1923, some later.
Example 4: Telemann's Suite in E-Minor,
recorded in 1952 in England by the Goldsbrough Orchestra, conducted
by Arnold Goldsbrough.
Example 5: J. S. Bach's Cello Suites, recorded
between 1936 and 1939 in England by Pablo Casals.
Example 6: Like a Virgin, recorded by Madonna
in 1984. The underlying musical composition was written by
Billy Steinberg and Tom Kelly in 1984.
FOOTNOTES
1 "Sound recordings" are defined
in the Copyright Act as "works that result from the fixation
of a series of musical, spoken, or other sounds, but not including
the sounds accompanying a motion picture or other audiovisual
work, regardless of the nature of the material objects, such
as discs, tapes or other phonorecords, in which they are embodied."
17 U.S.C. § 101. Copyright law is contained in Title 17 of
the United States Code (U.S.C.). All statutory references in
this paper are to sections of Title 17, unless otherwise noted.
2 The kinds of works on which sound
recordings are typically based have been protected by copyright
far longer. Books were included in the first copyright act
in 1790; musical compositions were added in 1831.
3 All these sound recordings were
first recorded in the United States, unless otherwise noted.
These examples are provided merely for the sake of discussion
and in some cases are based on assumptions: (1) We are assuming
that White Christmas was distributed in sheet music
(with copyright notice) in 1942, although we have not checked
the copyright registration to determine the publication date.
(2) Symphony No. 5 was written in 1901–1902; we assume
that it was published shortly thereafter. Mahler died in 1911.
(3) We didn't try to sort out the copyright dates for all of
the various poems read, which spanned many years. It is clear,
however, that the poems read were copyrighted under the 1909
act and that some remain copyright protected. (4) The Goldsbrough
Orchestra (which later became the English Chamber Orchestra)
did record Telemann's Suite in E-Minor sometime in
the period 1948–1952, but we don't know for certain that it
was 1952. The precise year is irrelevant for purposes of this
illustration. (5) This was one of the works at issue in the Capitol
Records v. Naxos case, discussed in section 3.3 of this
report. (6) Finally, we are assuming (but have not verified)
that the musical compositions underlying examples 2 (Mahler),
4 (Telemann), and 5 (Bach) are in the public domain, and that
the recordings did not involve new copyrighted arrangements
of these compositions.
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