Only in America: The Unique Status of Sound Recordings under U.S. Copyright Law and How It Threatens Our Audio Heritage

Sound recordings are an irreplaceable part of the historical record. For the past 120 years musicians, actors, public figures, and members of many ethnic groups and subcultures have committed their words, thoughts, and sounds to recorded media, creating, quite literally, a soundtrack of the past century. Through recordings, the past speaks to us directly, without the filter of second-hand interpretation or inference, whether it is a march as Sousa intended it to be performed, jazz as it was first widely heard, or a speech as actually delivered by Theodore Roosevelt or Booker T. Washington.

Nations around the world recognize the value of historical sound recordings through laws that encourage their preservation and accessibility. National archives preserve and catalog them, and both public and private entities disseminate them (nowadays via the Internet) to scholars and the public at large as they enter the public domain. Except in the United States. In this country the laws have become so skewed toward the interests of present-day "rights holders" that, almost without notice or even intent, most of the recorded past has been locked up for generations to come—perhaps forever. Permission is required to hear it.

Most people are not aware that in the United States sound recordings are treated differently, and more harshly, than any other type of intellectual property. Books, articles, published music, movies, photographs, and other creative works are generally protected for ninety-five years from publication, or for the life of the author plus seventy years—a very long time (some say too long), but at least fixed and predictable. In addition, due to a quirk in the law anything published prior to 1923 is already in the public domain.¹ Your high school band can play "The Stars and Stripes Forever" as much as it wants, and film scholars can screen The Great Train Robbery or Birth of a Nation without seeking anyone's permission. Moreover, even if a work was created after 1923 and is still under copyright, the law provides exceptions allowing archives to copy it for preservation purposes and users to quote excerpts from it under "fair use" provisions.

Not so with recordings made prior to 1972. The reason is an obscure provision of the 1976 Copyright Act—Section 301(c)—that specified that the law covered only recordings made after February 15, 1972; all those made prior to that date remained under state law.² Previously sound recordings had not been covered by federal law and the idea was to provide a transitional period between the previous state coverage and the new regime of federal coverage. This odd transitional provision was supposed to sunset in 2047, although that date has since been moved to 2067 and some think it will never be allowed to expire.

For a long time no one had systematically studied the sound-recording laws of the fifty states to determine exactly what this bifurcated system—unique in the world—meant in practice. Unfortunately, after thirty years of experience we have the answer. With the rise of the Internet in the 1990s recording rights holders (mostly large corporations) became very aggressive in shutting down what they consider to be unauthorized distribution of their products. They focused mostly on the downloading of modern recordings (30,000 Americans have been sued or threatened with lawsuits for such activities so far, under penalties authorized by Congress in 1998). However pre-1972 historical recordings have not escaped notice.

In 2005 the landmark case of Capitol v. Naxos pitted a distributor of 1930s foreign classical recordings (Naxos) against the putative holder of the U.S. rights to those recordings. The judges of the New York State Court of Appeals ruled against Naxos, but they used the opportunity to go much further than that. They declared that since New York State had not passed explicit statutes dealing with recording copyright, it was in fact governed by "common law" (i.e., law declared by judges in their rulings). In their opinion sound recording copyright in New York derived from...