Pre-1972 Sound Recordings
Certain sound recordings from decades ago are still considered commercially viable today. In fact, songs by Frank Sinatra, Etta James, and the Beatles are still heard on the radio. However, it has become unclear to what extent these sound recordings are protected by copyright law and which version of the Copyright Act pertains to which creative works.
Before understanding the different versions of the Copyright Act, it is important to understand the distinction in the law between musical works and sound recordings. Every song that is written, recorded, and released has two copyrights. One is the copyright for the song itself, which covers the underlying composition, the other is for the sound recording itself. Additionally, there is a distinction between copyright protection at the federal level, and copyright protection at the state level.
Copyright Protection for Sound Recordings
At first, the 1909 Copyright Act did not offer federal protection for sound recordings, leaving them under the protection of common law1. However, in November 1971, Congress passed the Sound Recording Amendment, which stipulated that the 1909 Copyright Act offer federal protection to sound recordings that were fixed, published, and copyrighted on or after February 15, 19722. This amendment was later incorporated into the 1976 Copyright Act, creating a distinction between pre- and post-1972 sound recordings as regards protection by federal law3. The amendment also placed a limitation on the duration of copyright protection for pre-1972 sound recordings protected under the common law, which had previously been protected indefinitely4. The Supreme Court ruled in Goldstein vs. California (1973) that common law protecting pre-1972 sound recordings was valid and enforceable, but the 1976 Copyright Act limited the duration of common law copyright protection for pre-1972 sound recordings to last until February 15, 20675. This means that although sound recordings fixed, published, and copyrighted before 1972 are governed by state law, federal law requires they are provided no protection after 20676.
DMCA Safe Harbor
Evidently, this dual system of protection and the conflicts between common law in different states caused some serious confusion leading to major legal problems in the music industry. These problems have been exacerbated by the digital reproduction and distribution of music over the Internet. In 1995, the Digital Performing Rights in Sound Recordings Act (DPRSA) was passed as an amendment to the 1976 Copyright Act to provide sound recording copyright owners with protection in the digital realm7. However, because the DPRSA was passed when the Internet had not yet been used for certain types digital transmissions of sound recordings, its provisions were not specific enough to accommodate the new ways that music is being shared8. As a result, in 1998 the Digital Millennium Copyright Act (DMCA) was created to amend the provisions of the DPRSA and extend protection to sound recordings in uses such as online music services9. However, there was still some confusion about the new ways in which music could be shared between Internet Service Providers (ISPs) and their users10. This issue was addressed in 1998 by The On-Line Copyright Infringement Liability Limitation Act (OCILLA) of 1998, which created “Safe Harbor” provisions that decreased the liability of systems, and networks for the infringing actions of their users11. However, these provisions did not specify whether the users of online music services, by way of ISPs, could use pre-1972 sound recordings12, resulting in disputes over the DMCAs applicability.
The dispute over the DMCA and pre-1972 sound recording has been the focus of several recent court cases. In Capitol Records, Inc. v. MP3tunes LLC (2007), several record companies motioned for summary judgment against MP3tunes, a music locker service, and argued that the safe harbor provisions of the DMCA did not offer protection for pre-1972 sound recordings residing in MP3tunes, and that MP3tunes had violated the rights of the copyright owners of pre-1972 recordings14. The plaintiffs supported their stance by pointing out that the words “infringement of copyrights” in Section 501 of the 1976 Copyright Act only applied to works granted protection under federal law15. However, the court’s interpretation of the words “infringement of copyright” held that “copyright” in Section 501 includes protection under both common law, and federal law, and they decided that pre-1972 sound recordings were legally made available for anyone by way of the safe harbor provisions using online music services such as MP3tunes16. Shortly after the Capitol Records court decision, there was another case, UMG Recordings, Inc. v. Escape Media Group, Inc., that raised the same argument, this time regarding infringing actions by Escape Media, the parent company of the music-sharing site Grooveshark. Though the courts intial ruling was in lock step with the Capitol Records decision, the appellate court overturned the decision, ruling that the DMCA safe harbor provisions were not applicable to works that are not protected by federal law. Shortly after these decisions, the U.S. Copyright Office began to heavily advocate for Congress to include pre-1972 sound recordings under federal protection18.
Public Performance of Sound Recordings
The issues surrounding pre-1972 sound recordings did not end with those two cases. Another very important legal issue arose with pre-1972 sound recordings and Internet radio20. In 2013, all three major labels realized that SiriusXM Radio was not paying performance royalties for broadcasting pre-1972 sound recordings21. It is important to remember that terrestrial (AM/FM) radio only pays royalties for the underlying composition. However, music played by satellite radio (a.k.a. Internet radio), is a digital transmission that is considered a public performance of the sound recording, so when music is streamed via Internet radio, royalties are owed to the owners of both the composition and the sound recording of the song. The issue with SiriusXM Radio is that it has not paid royalties for pre-1972 recordings because these recordings are not protected under U.S. federal copyright law22. A decision on the SiriusXM case has not yet been made, but it is evident that although February 15, 1972 draws the line between those sound recordings protected by state law and those protected by federal law, this copyright law technicality is causing serious problems23.
It is apparent that Congress must do something soon to alleviate this confusion, as the issues surrounding pre-1972 sound recordings and how they fit into the digital era of music could continue to result in not only headaches, but also the loss of valuable revenue that is owed to owners of old, but still commercially successful works. Given how long these disputes have been occurring, Congress should have amended the Copyright Act to address the rapid evolution of technology. Although our copyright law was designed to ultimately benefit society, in recent years it has become a source of great confusion, resulting in the disruption and destruction of important revenue streams for some musicians.
By Matthew Limones
1. Cheryl L. Slay and David J. Moser, Music Copyright Law (Boston: Course Technology, a part of Cengage Learning, 2012), 35.
5. Slay and Moser, Music Copyright Law, 36
7. Slay and Moser, Music Copyright Law, 122
9. Slay and Moser, Music Copyright Law, 261
13. Nicol, “Does the DMCA’s Safe Harbor Apply to Pre-1972 Sound Recordings?”, Digital Media Law, August 9, 2012, http://www.dmlp.org/blog/2012/does-dmcas-safe-harbor-apply-pre-1972-sound-recordings
20. McAfee, David. “Recording Giants Sue Sirius XM Over Pre-1972 Songs”, 2013. Law 360, Lexis Nexis.