Protection for Pre-1972 Sound Recordings under State Law and Its Impact on Use by Nonprofit Institutions: A 10-State Analysis
Prepared by the Program on Information Justice and Intellectual Property
Washington College of Law, American University
Under the supervision of Peter Jaszi with the assistance of Nick Lewis
September 2009
Commissioned for and sponsored by the National Recording Preservation Board, Library of Congress
Copublished by the Council on Library and Information Resources and the Library of Congress
Copyright 2009 by the Council on Library and Information Resources. No part of this publication may be reproduced or transcribed in any form without permission of the publishers. Requests for reproduction or other uses or questions pertaining to permissions should be submitted in writing to the Director of Communications at the Council on Library and Information Resources
The National Recording Preservation Board
The National Recording Preservation Board was established at the Library of Congress by the National Recording Preservation Act of 2000. Among the provisions of the law are a directive to the Board to study and report on the state of sound recording preservation in the United States. More information about the National Recording Preservation Board can be found at http://www.loc.gov/rr/record/nrpb/.
Contents
Part I: Overview of State Sound Recording Laws
A. The History of Protection of Sound Recordings
1. Beginnings
2. The 1909 Copyright Act
3. State Remedies
a. Common Law Copyright
b. Unfair Competition
c. Unauthorized-Distribution Laws
4. Federal Protection: The Sound Recording Amendments of 1971
5. Upholding the Validity of State Protection: Goldstein v. California
6. Current State Law Remedies for Pre-1972 Sound Recordings
B. Criminal Antipiracy Statutes
1. Commonalities
2. Differences
3. Potential Defenses
C. Civil Statutes
D. Nonstatutory Causes of Action
1. Common Law Copyright
2. The Doctrine of Unfair Competition/Misappropriation
3. Conversion
E. Right of Publicity
1. Statutory Right of Publicity
2. Common Law Right of Publicity
Part II: The States
Alabama
California
Florida
Illinois
Massachusetts
New Jersey
New York
North Carolina
Ohio
Wisconsin
About the Project Leaders
Peter Jaszi teaches domestic and international copyright law at the Washington College of Law of American University in Washington, D.C. He also directs the Glushko-Samuelson Intellectual Property Law Clinic at American University and helped establish the Program on Information Justice and Intellectual Property. With Craig Joyce, Marshall Leaffer, and Tyler Ochoa, he coauthors a standard copyright textbook, Copyright Law (Lexis, 7th ed., 2006). With Martha Woodmansee, he edited The Construction of Authorship, published by Duke University Press. In 1994, Jaszi was a member of the Librarian of Congress’s Advisory Commission on Copyright Registration and Deposit, and in 1995 he was an organizer of the Digital Future Coalition. He is a trustee of the Copyright Society of the U.S.A., and a member of the editorial board of its journal. In 2007, he received the American Library Association’s L. Ray Patterson Copyright Award, and in 2009 the Intellectual Property Section of the District of Columbia Bar honored him as the year’s Champion of Intellectual Property. Since 2005, he has been working with Patricia Aufderheide of the American University’s Center for Social Media on projects designed to promote the understanding of fair use by documentary filmmakers and other creators. For the academic year 2009–2010, Prof. Jaszi is serving as the Intellectual Property Scholar of the Center for Intellectual Property at the University of Maryland University College.
Nicholas B. Lewis graduated cum laude from Pomona College with a Bachelor of Arts in Politics in 2002 and summa cum laude from American University, Washington College of Law, in 2006, where he was a member of the American University Law Review and served as a research assistant to Professor Peter Jaszi. Following a clerkship with the Chief Judge of the District of Columbia Court of Appeals, he joined the Washington, D.C. office of McGuireWoods LLP. He is currently an associate in the Government Investigations practice group.
This report would not have been possible without the outstanding research and contributions from many students in the Program on Information Justice and Intellectual Property (PIJIP), Washington College of Law, American University. The PIJIP works to advance access to information for teachers, students, artists, programmers, bloggers, inventors, scientists, doctors, patients, and others who depend on it to make essential cultural and economic contributions to society. PIJIP seeks to assure that their voices are heard and interests are recognized. PIJIP accomplishes this through projects they undertake dealing with intellectual property issues across the world, by hosting events emphasizing its values in the Washington, D.C. area, and through the advancement of information via news articles, blog entries, and more, posted on its website. More information on PIJIP is available at http://www.wcl.american.edu/pijip/go/about-pijip.
Foreword
This is the third of three studies of copyright and sound recordings commissioned by the National Recording Preservation Board (NRPB) in support of the congressionally mandated study of the state of audio preservation in the United States. All three studies have focused on how laws pertaining to sound recordings made before 1972 affect preservation of and access to audio recordings. As readers of the previous two studies know, sound recordings made before February 15, 1972, do not benefit from federal copyright protection. In the absence of a national law, in the late 1960s and early 1970s, individual states passed anti-piracy and other laws to protect producers of sound recordings from unauthorized duplication and sale of recordings.
The first two NRPB studies, both written by Professor June M. Besek of Columbia Law School, explored how laws pertaining to rights to pre-1972 sound recordings affect the preservation of and access to these rich resources. Professor Besek’s work examined preservation and access issues as they apply to commercial sound recordings and unpublished works, such as live recordings, radio broadcast transcriptions, oral histories, and news interviews.
In this study, Professor Peter Jaszi and students in the Program on Information Justice and Intellectual Property at American University’s Washington College of Law examine criminal and civil laws of 10 states, as well as judicial decisions and common law, pertaining to sound recordings fixed before 1972. The authors provide a brief history of the formulation of these laws and examine the laws and court cases that may determine the extent to which nonprofit institutions may preserve and disseminate pre-1972 recordings.
As Professor Jaszi and his students note, state anti-piracy laws alone do not define the legal uses of pre-1972 recordings. Legal uses of these recordings are also affected by common law copyright, unfair-competition laws, rights of privacy, and federal copyright law related to underlying works, such as musical compositions performed on the recordings. Remarkably, this is the first in-depth analysis of individual state copyright laws.
Professor Jaszi begins his preface with the statement, “Nonprofit cultural institutions, such as libraries, archives, and museums, hope to make available sound recordings created prior to 1972.” Speakers at hearings conducted for the National Recording Preservation Board’s study of the state of audio preservation made this desire quite clear. A significant amount of the testimony expressed the frustration of librarians and archivists over the difficulty of making their collections accessible to scholars and the public. Many of my colleagues at the Library of Congress share my personal conviction that it is our obligation to make our collections as accessible as possible, within the law. This is especially true for collections that are unique, rare, or difficult to locate elsewhere.
A great number of the three million sound recordings held by the Library of Congress at the newly opened Packard Campus Audio Visual Conservation Center in Culpeper, Virginia, meet these criteria. Many of the early commercial sound recordings and radio broadcast collections preserved at the Center are not held by any other public institution. It is the Library’s obligation, in ensuring that the Packard Campus becomes a truly national center, to make certain that its audio treasures are shared as widely as possible. Yet in an environment where there are virtually no public domain sound recordings and where, as discussed in this study, the laws controlling early sound recordings are complex and vast, copyright-related issues present a formidable challenge.
In early 2010, the Packard Campus will launch a Web site that will offer streaming of more than 10,000 pre-1925 commercial recordings. A generous, gratis license from Sony Music Entertainment will make this access possible from a legal perspective. In any other country, however, such materials are already in the public domain. In addition, if these recordings were in any other format held by the Library of Congress, such as books, maps, music, or photographs, they would have been in the public domain for more than a decade.
The exclusive right of creators to benefit from creative expression for a limited period is fundamental to U.S. law, as set forth in the Constitution. Librarians and archivists respect this right and uphold the limitations to unauthorized dissemination as outlined in U.S. copyright law. They are aware that unauthorized distribution of audiovisual works is a legitimate concern of copyright holders. At the same time, they recognize that in the long run, the breadth and duration of restrictions on the dissemination of sound recordings can only undermine respect for copyright law and other exclusive rights. A survey conducted for the NRPB by Tim Brooks1 found that fewer than 4 percent of historical recordings made before 1925 are available for sale by rights holders. In other words, 96 percent of pre-1925 commercial recordings are inaccessible commercially and may not be published, sold, or offered for downloading legally until 2067.
At the conclusion of his analysis of applicable laws in each of the 10 states included in his report, Professor Jaszi outlines what he terms “potential defenses for nonprofit institutions.” In these sections, he examines the courses of defense a nonprofit institution might take if accused of unauthorized use of pre-1972 sound recordings. These analyses will be invaluable to all nonprofit institutions working to make historical recordings accessible. However, the legal issues related to dissemination of pre-1972 recordings, and all recordings, are complex. Having these analyses of potential legal defenses is useful, but the mere need to consider “potential defenses” has a chilling effect on all institutions without the legal resources and wherewithal to undertake legal risks.
Congress has recently directed the U.S. Copyright Office to “conduct a study on the desirability of and means for bringing sound recordings fixed before February 15, 1972, under federal jurisdiction.” The study will “cover the effect of federal coverage on the preservation of such sound recordings, the effect on public access to those recordings, and the economic impact of federal coverage on rights holders.”2 The work conducted thus far on behalf of the National Recording Preservation Board will assist the Register of Copyrights as it undertakes this study. We are deeply indebted to Professor Jaszi and his students for this particular work—one that will be invaluable to all who want to better understand the laws and restrictions pertaining to pre-1972 recordings and who hope for a future in which the hundreds of thousands of historical audio recordings held in libraries, archives, and private collections may be disseminated broadly.
Deanna B. Marcum
Associate Librarian for Library Services
Library of Congress
FOOTNOTES
1 Brooks, Tim. 2005. Survey of Reissues of U.S. Recordings. Washington, DC: Council on Library and Information Resources and Library of Congress.
2 Congressional Record. February 23, 2009. H2397. Available at http://www.congressonrecord.com/page/H2397.
Introduction
Nonprofit cultural institutions, such as libraries, archives, and museums, hope to make available sound recordings created prior to 1972. However, exactly what protections those recordings have, and thus what barriers may exist to inhibit such use, are not always clear. What is known is that federal copyright law did not protect sound recordings until 1972, and that it expressly leaves protection for pre-1972 sound recordings exclusively in the domain of the states.
Nearly every state has taken steps to protect pre-1972 sound recordings in some fashion, be it through criminal antipiracy statutes or common law theories such as common law copyright, the doctrine of unfair competition, or misappropriation. However, because each state can determine which rights it will or will not grant, a state-by-state review is necessary.
We examined 10 states to get a sense of the types of protections states extend to pre-1972 sound recordings, and what impact these laws may have on the use of such recordings by nonprofit institutions. Our survey began with a quick survey of all 50 U.S. states, to determine which ones would be good candidates for more extensive investigation. Some states were selected because they are jurisdictions in which the sound recording industry is well established, and others because their laws appeared to be relatively typical in character. Still others were chosen because they exhibited features that appeared unusual and worthy of further inquiry. The 10 states are not necessarily a representative cross-section of the nation; however, when taken together, they illustrate many aspects of state law with which nonprofit cultural institutions may need to be concerned.
Our working method was to identify, in advance, various types of statutory and judge-made laws that might have implications for nonprofit institutions’ efforts to make the heritage of recorded sound more broadly available. Each of these legal categories was then explored in primary- and secondary-source materials relating to the 10 states under consideration.
Part I of this report summarizes the state-by-state examination. It includes a general history of state law protection and summaries of the potential protections available. This section also compares and contrasts the laws and provisions of many of the states. Part II provides a more in-depth analysis of sound recording laws in each state in the sample.
