Legalize Music History

Congress has an opportunity to overcome a pointless legal logjam and make America’s cultural heritage far more available to the public. A long-running struggle over music and copyright has resulted in many sound recordings being barred from the public domain, contrary to the intention of the founding fathers and the interests of the listening public. The Constitution’s framers meant for creators and inventors to enjoy an incentive to create new works, not a permanent property right to control ideas, expressions, and inventions. Unfortunately, this restrictive situation is the unintended side-effect of laws passed decades ago, by lawmakers unaware of the consequences of their actions. Here’s why:

The recording of sound has long puzzled the makers and interpreters of American law. Proposals for a recording copyright were beset by philosophical confusion, the competing interests of various parties in the music industry, and conflicts between state and federal law. Until the Sound Recording Act went into effect in 1972, recordings had no real copyright protection at the federal level. Written compositions had been copyrightable since 1832, but Congress declined on numerous occasions to extend copyright to sound recordings themselves – that is, specific recorded performances of compositions. You could copyright “White Christmas,” but not a particular rendition of the song by Bing Crosby or Worm Murderer and the Ice Spasms. The question first emerged during debates over the Copyright Act of 1909, when Congress decided not to create a new copyright for recordings – which in those days meant wax cylinders, paper piano rolls, and the other products of a recording industry still in its infancy. Although the topic came up many times in the following decades, Congress failed to act until composers, record labels, and unions united in support of reform that created a new property right for recordings in 1971. * 

The courts and Congress gradually embraced an expansive interpretation of property rights, but the status of recordings remained an open question for much of the twentieth century. Record companies found that defending their common law rights in court was expensive, the outcome uncertain. As a result, they pressed numerous state and local authorities to address the issue of piracy and the general lack of protection for recordings. Los Angeles, with its own local recording industry, was the first to pass a law forbidding unauthorized reproduction of records in 1948. When the advent of magnetic tape led to an increase of record pirating, the state of New York passed an important law in 1967 that forbade anyone to make copies of a record without permission of its original producer – presumably, the company that funded and organized its recording.

A 1905 recording that will be under copyright until at least 2067

Not everyone was pleased with the legislative push against piracy. Broadcasters worried that their own practice of making temporary copies of recordings for use on the air would fall under this sweeping law, turning them into criminals. Meanwhile, record collectors from Manhattan to New Orleans petitioned Governor Nelson Rockefeller not to sign the bill as it was written; they argued that many historically important recordings had long since fallen out of print, as record labels considered the music too obscure to merit continued commercial release. Such music only continued to be available through collectors who made copies on a small scale to supply those who were interested in the antiquarian and esoteric. Music fans had argued for the cultural importance of bootlegging since at least the 1930s, when jazz aficionados dubbed and exchanged copies of classic out-of-print recordings in the interest of historical preservation.

Unfortunately, many states followed New York’s lead in the following years, passing broad laws that put recordings permanently out of the public domain. Critics in the 1960s warned that such laws actually violated the Constitution, since the nation’s founding document gave Congress the power to grant creators and inventors the exclusive right to exploit their works only for “limited times.” As lawyer and collector Payson Clark argued in 1966:

Properties which are gravely affected with the public interest, in which society has artistic and cultural rights of enormous significance (although no one has yet found them materially rewarding to reproduce) are being locked away from posterity out of a misdirected zeal to keep ‘The Beatles’ recording royalties from being diluted. Let us defend The Beatles right to riches, if that pleases the Legislature, but not by forever suppressing the immortal recordings of America’s creative musicians of the 1920’s and ’30’s whose playing has been felt and heard around the globe.

Gov. Rockefeller did not heed Clark’s plea. The new laws, passed in the late 1960s and early 1970s, gave record labels a completely unlimited right to control the use of recordings. Although Congress brought recordings made after 1972 under federal copyright – with a term that now lasts the life of the author plus 70 years, or up to 120 years for corporate works – many recordings that otherwise would not be restricted under federal law continue to be “protected” by these state laws. As a result, some of the earliest and most historically important etchings of sound waves from the 1880s and 1890s remain, at least theoretically, under legal protection. Whereas a book or photograph from the exact same time period would now be in the public domain and freely available, according to federal copyright, sound recordings from the early twentieth century remain restricted by state laws.

Such rules set an intolerably high barrier for students, scholars, and the listening public, who will not see many recordings pass into the public domain and become freely available unless Congress acts. Libraries, archives, and other institutions understandably exercise caution in these matters, fearing legal retribution if they permit a patron or researcher to make a copy of a recording for which the owner may be long dead or impossible to determine; the possibility of litigation, however remote, creates a powerful chilling effect. The result is a senselessly restrictive situation in which Americans are denied access to the remnants of their recorded heritage out of fear of phantom rights-owners. The laws, after all, forbid reproduction of more than a few copies in the absence of permission from some rights-holder, whoever that might be. In the interests of access, education, and Constitutional freedom, Congress should treat recorded sound just like any other work by bringing state laws in line with federal copyright.

What You Can Do 

The Copyright Office is now conducting a study of the “desirability and means” of bringing recordings made before 1972 under federal copyright law. The public can post comments that will be considered in the Copyright Office’s report to Congress until January 31, 2011. Many library groups, including the Association of Recorded Sound Collections (ARSC), are participating in this process as part of their long-running commitment to freer access to information. As the ARSC’s Tim Brooks has noted:

It is vital that the Copyright Office hear from as many citizens as possible, archivists and collectors, professionals and non-professionals alike, not only to hear the reasons why people care about preserving and making accessible historical recordings, but also so they can gauge the breadth of support for change.

The Copyright Office wants to hear from you. Visit http://copyright.gov/docs/sound to submit your opinion. While the Office has outlined 30 somewhat technical questions that it would like to see answered, you can say whatever you like about the importance of making America’s cultural history as freely available as possible. The Historical Recording Coalition for Access and Preservation (HRCAP) offers a good deal of background information and ways for citizens to act here: http://recordingcopyright.org/joinus.html.

Alex Sayf Cummings

* A Word about Common Law Copyright 

Even before 1971, it remained possible for an artist or record company to possess a “common law copyright” for a recording at the state level. (This is the right one had to his work regardless of whether it was formally registered for copyright.) Precedent stretching back to the early nineteenth century made it clear that an author gave up this common law right when a work was “published,” which typically meant being distributed to the public. To get around this fact, record companies have argued since the 1930s that airing a performance on the radio or selling copies of a record was not the same thing as publishing it. While some jurists disputed this seemingly preposterous notion, courts have increasingly sided with would-be rights-owners over the years, notably in the 2005 Capital v. Naxos decision. The result is a circle of logical violence:

1. Pre-1972 recordings are eligible for common law copyright

2. Common law copyright is given up on publication, but pressing and selling a record does not equal publishing it

3. If selling records does not count as publication, then it must be impossible for recordings to lose their common law copyright

4. Thus, there is currently no public domain for recordings

To be fair, Congress has attempted to remedy this odd situation by dictating that all common law copyrights lapse by 2067, but the solution is cold comfort for anyone interested in the sounds of the past. A seminal recording of the human voice from 1860 will end up being covered by copyright for over 200 years, long after its creators and their great grandchildren have vanished from the Earth.

Further Reading

• Brendan Scott, "Some Notes on Capitol Records Inc. v. Naxos of America," Groklaw (2005)

• Me, “Bootleggers, Collectors, and the Value of Jazz, 1930-1952,” in David Suisman and Susan Strasser, eds., Sound in the Age of Mechanical Reproduction (Philadelphia: University of Pennsylvania Press, 2009).

• Me, "From Monopoly to Intellectual Property: Music Piracy and the Remaking of American Copyright," Journal of American History 97 (Dec. 2010), 659-81.

• Melvin Garner, "The Future of Record Piracy," Brooklyn Law Review 406-427 (1971).

• Lisa Gitelman, "Reading Music, Reading Records, Reading Race: Musical Copyright and the U.S. Copyright Act of 1909," Musical Quarterly 81 (1997): 265-290.

• Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: New York University Press, 2001).