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.
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.