Taking Common-Law Copyright for Pre-1972 Sound Recordings Seriously

08 Aug 2018

For those unfamiliar with common-law copyright and sound recordings, it might be helpful to read my post Of Sheep and Goats summarizing the issues as context for this post, although I do go over the basics here as well.

Almost five years ago (how the time flies) I was reading about the then-new cases where Flo & Eddie of the Turtles were suing SiriusXM and Pandora for infringement of their common-law copyrights. I distinctly remember going to bed and then getting up with a bit of a start, such is the drama of my life – I’d seen this before, and I didn’t think many others had. In particular, while writing in my 2007 article The Twilight of the Opera Pirates, I remember reading various cases involving the operatic duo of Gilbert & Sullivan, including the Mikado and Iolanthe cases. Both cases involved attempts by the British owners of the work to prevent American theaters from performing their in-house orchestrations of these operas, which had been orchestrated from the published piano reduction of the opera (designed to be performed at home). At the time I’d focused on the success of the strategy, but looking back I realized something else – everyone seemed to agree that if the American theaters had used the unpublished orchestral score directly, they would be infringing the common-law copyright of the composer, even though (a) public performance of music was not infringing until over a decade later, and (b) the composer was British, and foreigners would not get copyright in America until 1891.

I dove deeper into the issue, and last month the Cincinnati Law Review published my article about common-law copyright for sound recordings, called “Common-Law Copyright.” I’ve been talking about this piece for a while now, and this will be the last such post, because it’s been published, and the final PDF is online. My initial goal was to find more such examples from older cases, and I believe I demonstrated conclusively that common-law copyright has always included performance rights, and that such performance rights are not dependent on federal statute granting performance rights. However, as I was writing I started to wonder whether performance rights and duration were the only points of difference between statutory and common-law copyright.

And that is why I gave my article the title “Common-Law Copyright,” instead of a title more explicitly linking it to sound recordings. Because we’ve really failed to think through the doctrinal consequences of using common-law copyright to protect older sound recordings, or even really what common-law copyright is. In my article I believe I document pretty clearly just how different common-law copyright is from statutory copyright, and how we’ve fairly to take it seriously as a doctrine and ended up with a muddle of unpredictability and confusion.

So, what is common-law copyright? In a nutshell, common-law copyright is the perpetual right of control over unpublished works – both pre-publication manuscripts and documents meant to be kept private, like letters and diaries.¹ Copyright law both common-law and federal provides that if a work is published then it loses common-law protection In the 1930s through the 1950s, a number of court cases held that sound recordings are not published under state laws, even if publicly sold, and thus could be protected by common-law. In 1972 sound recordings were brought within federal law and state-law protection was rendered largely moot, but this change only applied to sound recordings made on February 15, 1972 or later, leading to the current predicament regarding “pre-72” sound recordings.

In the middle of the 20th century, it wasn’t entirely clear if the doctrine was actually common-law copyright or a different sui generis protection – Courts generally didn’t use the phrase “common-law copyright,” and Nimmer – the major treatise on copyright at the time (and one of the major ones still) said in the 1973 edition that the protection for sound recordings is not common-law copyright. However, in recent years Courts, especially in New York, have settled on the protection for pre-72 sound recordings being under common-law copyright.

Common-law copyright was abolished except for pre-72 sound recordings by the 1976 Copyright Act, meaning that Courts generally only encounter common-law copyright issues in this narrow context now. Courts have thus tended to treat common-law copyright for pre-72 sound recordings as being largely identical to statutory copyright. I believe this is a mistake, and if we’re going to use common-law copyright for pre-72 sound recordings, we should take the doctrine seriously and understand that it is substantially broader from statutory copyright.

The article covers a lot of ground, and I hope folks in the various affected fields find it helpful. The Music Modernization Act, if passed, will require payment of royalties for digital audio transmission of pre-72 sound recordings, implicitly but not explicitly recognizing common-law rights in pre-72 sound recordings. Whether we choose to take common-law copyright seriously going forward is up to us.

I try to include something archival with each post, so here‘s the casefile from Gee v. CBS on appeal to the 3rd Circuit Court of Appeals from the decision of the Eastern District of Pennsylvania, on the question of whether common-law copyright in sound recordings made by Bessie Smith is subject to adverse possession. The very short unpublished opinion of the 3rd Circuit is also included.

Earlier Posts, which can also be seen in this blog’s Common-Law Copyright tag:

The concept of mailing a document to yourself, sometimes called common-law or “poor man’s” copyright, is completely different, not to mention largely ineffectual. ↩