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Copyright Breakdown: The Music Modernization Act

Copyright Office, 1920. Library of Congress Prints & Photographs Division.

The Copyright Office in 1920. Library of Congress Prints & Photographs Division.

Reference librarians in the Recorded Sound and Moving Image Research Centers get hundreds of questions each year about materials in the public domain. For films, which follow the current 95-year restrictions along with many other types of publications, the answer is fairly straightforward: if it was published before January 1, 1924 (as of January 1, 2019), it’s in the public domain. This doesn’t mean that there aren’t any films published in 1924 or later that are also in the public domain, but a search of the Copyright Office’s records would have to be performed in order to be certain about the status of the film. For sound recordings, the question is a bit more complicated. Whether or not there are sound recordings in the public domain is a difficult question for a whole host of reasons, but the short answer is that it’s safest to assume that there are no sound recordings in the public domain. In reality, there probably are a few. But sound recording rights are tangled up in both state and federal law and require expert research into those laws to determine the status of a recording.

A key distinction here is the difference between a sound recording and a musical work. A musical work consists of the notes, melodies, and lyrics that make up songs or musical compositions, often notated in the form of sheet music. A sound recording, then, is the process of recording that written music onto a medium that can play back the sounds—such as a record, tape, CD, or digital file. Musical works—sheet music—can be in the public domain, and all musical works registered before January 1, 1924, are—with copyrights fixed in 1923 just recently expiring on January 1, 2019. Recordings of those works, however, were under copyright protection until 2067—until very recently.

James Scott,

While this sheet music may be public domain, recordings of this work are not until January 1, 2022. James Scott, “Broadway Rag.” Stark Music, 1922. Library of Congress Music Division.

The sound recording copyright muddle goes back to the 1970s, when sound recordings were first entered into copyright law. Before February 15, 1972, sound recordings weren’t protected by federal copyright law but rather by individual state laws. When sound recordings were absorbed into federal law, the maximum copyright term was 56 years (an initial term of 28 years, plus another 28 if the copyright was renewed). In 1976, however, Congress passed an act that extended the maximum copyright term for all materials to 75 years, making 2047 (75 years after 1972) the earliest any recordings would enter the public domain. A 1992 law made copyright renewal automatic, and another extension of the copyright term occurred in 1998, bringing the restricted time frame up to 95 years. That puts us in 2067 for the first sound recordings—those published after February 15, 1972—to become public domain. To complicate matters further, the law left recordings fixed before February 15, 1972, under the protection of the existing patchwork of state laws, with federal law to preempt state law in 2067, at which point all pre-1972 sound recordings would enter the public domain.

Recent changes to copyright laws, however, have produced big changes for sound recordings. It’s been a big year for the public domain already, with works entering the public domain on January 1, 2019, for the first time since 1998. You may have seen our recent post on two films in the Library’s collections that were part of the hundreds of thousands of published works of all kinds whose 1923 copyright finally expired, and a post from the Copyright Office highlighting a few more.

The good news for recordings came this past fall: on October 11, 2018, the President signed into law the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (H.R.1551). Building on a few previously-introduced bills and several reports from the Copyright Office, the Library of Congress and the National Recording Preservation Board, the law provides a much-needed revision of several aspects of sound recording copyright. While it deals mainly with updating rights and royalties policies for digital and streaming music, there is a section of the law that has to do with pre-1972 sound recordings which had been rights-protected by the previously mentioned mish-mash of state laws. With this act, pre-1972 recordings are also protected under federal copyright law. And here’s where the good news for public domain comes in—all recordings created before 1956 are now slated to enter the public domain earlier than the previous 2067 date, with copyright for the earliest sound recordings expiring in just a few years.

The Copyright Office says:

Title II—Classics Protection and Access, among other things, brings pre-1972 sound recordings partially into the federal copyright system by extending remedies for copyright infringement to owners of sound recordings fixed before February 15, 1972. The federal remedies for unauthorized use of pre-1972 sound recordings shall be available for 95 years after first publication of the recording, ending on December 31 of that year, subject to certain additional periods. These periods provide varying additional protection for pre-1972 sound recordings, based on when the sound recording was first published:

    • For recordings first published before 1923, the additional time period ends on December 31, 2021.
    • For recordings first published between 1923-1946, the additional time period is 5 years after the general 95-year term.
    • For recordings first published between 1947-1956, the additional time period is 15 years after the general 95-year term.
    • For all remaining recordings first fixed prior to February 15, 1972, the additional transition period shall end on February 15, 2067.

So, as of January 1, 2022, tens of thousands of early recordings will no longer be under copyright restrictions. What does this mean for recorded sound research at the Library of Congress? Increased public and online access to previously unavailable recordings and expanded opportunities to explore the earliest days of our sound recording heritage. 2022 is still a few years off, but it’s certainly better than 2067!

The National Jukebox contains over ten thousand historical recordings published by Victor and other early record companies.

While you wait for January 2022 to roll around:

Explore the National Jukebox for a taste of the early recordings that will soon enter the public domain.

Take a look at the full text of the Music Modernization Act (H.R.1551).

Catch up on the history of the issue with this 2011 report from the Copyright Office on pre-1972 sound recordings. See also the National Recording Preservation Plan and other reports from the Library of Congress, as well as a report published by the Council on Library and Information Resources (CLIR) on sound recording copyright issues.

Learn more about the public domain and Public Domain Day from Duke University’s Center for the Study of the Public Domain.

Explore Copyright.gov and Congress.gov for more information on copyright and the legislation working its way through Congress.

 

Special thanks to Steve Leggett of the National Film and Recording Preservation Boards for assistance in navigating the intricacies of U.S. copyright law.

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