Lawmakers in Tennessee will now vote on whether to extend copyright protection to pre-1972 sound recordings.
Federal copyright law in the United States currently protects sound recordings released on or after February 15th, 1972. Unfortunately, only a handful of states actually protect pre-1972 tracks, and even then, they have widely differing local rules.
Florida’s Supreme Court, for example, recently decided that oldies shouldn’t enjoy copyright protection. They belong in the public domain. In California, to avoid a potentially costly defeat, SiriusXM settled with The Turtles’ Flo & Eddie. A California judge had previously ruled against the digital broadcaster’s favor, while a judge in Florida ruled for SiriusXM. The New York State Court of Appeals also sided with the digital broadcaster.
Now, the Tennessee General Assembly will vote on whether to provide protection to ‘oldies’ sound recordings.
Introduced on Wednesday, House Bill 1603 aims to amend state law to extend copyright protection to pre-1972 recordings. Dubbed the “Legacy Sound Recording Protection Act,” a short summary leaked from the Tennessee General Assembly reads,
“Personal Property – As introduced, prohibits any person or legal entity, besides the owner of a copyrighted sound recording initially fixed on or before February 15, 1972, from reproducing, distributing, performing, or otherwise using the recording without the owner’s express permission; creates a civil cause of action for the owner. – Amends TCA Title 29; Title 39 and Title 40.”
The bill aims to amend Tennessee Code Annotated Title 29 to add the following terms.
“Copies”
These are material objects in which a work is fixed and from which any work can be perceived, reproduced, or otherwise communicated.
“Digital transmission”
A transmission as a whole or in part in a digital, or non-analog, format.
“Fixed”
A permanent or stable tangible medium of expression perceived, reproduced, or communicated for more than a transitory duration. A work consisting of transmitted sounds constitutes as ‘fixed.’
“Perform”
Recite, render, play, dance, or act either directly or through any device or process.
“Phonorecords”
Material objects that fix sounds, and from which sounds can be perceived, reproduced, or otherwise communicated. This includes current objects and those later developed. It also includes the material object that first fixes the sounds.
“Publicly”
At a place open to the public or any public gathering outside of family members and/or social acquaintances gather. It also means communicated to a place, where members of the public can receive the sound recording. In addition, this applies to separate places at the same time or at different times.
“Sound recording”
A work that results from the fixation of a series of musical, spoken, or other sounds.
“Transmit”
Means to communicate by means of a known or future device or process, where sounds are received beyond the place from which sounds are sent.
Copyright owners of sound recordings on or before February 15th, 1972, would also have the exclusive right to:
1. Reproduce the sound recording in copies or phonorecords.
2. Prepare derivative works based upon the sound recordings.
3. Distribute copies or phonorecords of the sound recordings to the public by sale or other transfer of ownership.
4. Perform the sound recording publicly for profit through a digital or satellite audio transmission.
If passed, HB1603 would also create a civil cause of action of ‘oldies’ copyright owners. This creates a penalty for people or legal entities that perform the actions previously described without the owner’s express permission. However, this doesn’t apply if used for a library or archives under the following conditions:
1. The reproduction or distribution does not have a direct or indirect commercial advantage.
2. The collections of the library or archive remain open to the public and available to researchers.
You can read the draft version of the Legacy Sound Recording Protection Act below.
Featured image in the Public Domain
Daniel,
You write that “Unfortunately, only a handful of states actually protect pre-1972 tracks, and even then, they have widely differing local rules.” Actually, all or nearly all states have protection for such recordings, including criminal provisions for unauthorized duplication or distribution. See for example: https://www.loc.gov/programs/static/national-recording-preservation-plan/publications-and-reports/documents/pub146.pdf “nearly every state has adopted criminal statutes prohibiting the unauthorized duplication, or pirating, of sound recordings fixed prior to February 15, 1972.”
There may be questions concerning the scope of rights under state common and statutory law, but no question about whether such recordings are protected. I hope that’s helpful.
I’d really be interested in seeing what those specific protections are in each state. The same report you cite includes this:
“However, different states have enacted different laws, and different
state courts have applied common law theories in various ways,
making a state-by-state review necessary for owners and potential
users of pre-1972 sound recordings.”
In other words: a patchwork. Then, of course there are laws on the books that never get enforced. It seems that this report only examines 10 states.
So I’m not discrediting what you’ve written, but does not seem to be the comprehensive answer.
With all due respect, state law is a joke with regards to global networking. National sovereign copyright, too. Until we approach these issues internationally we are missing the target. If you are thinking otherwise, consider international treaties like Berne and others — of course we need laws to cross borders as do the networks and media themselves. Pretending otherwise is truly ridiculous. Local law, anyone? Should Los Angeles, Nashville or New York, to name a few, act now? Of course not.