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« Free the Founding Fathers! | Main | Copyright Renewal, Copyright Restoration, and the Difficulty of Determining Copyright Status »

July 01, 2008

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According to Jerry Fabris, a curator at the Edison National Historic Site, the copyright status for the Edison Records recordings is unclear, and that in the view of Mr. Fabris, the records may well be "orphan works." For more details about this, please see:

http://en.wikipedia.org/wiki/Wikipedia_talk:Public_domain#The_copyright_status_of_the_Edison_Records_sound_recordings

Peter,
Thank you for this most interesting analysis. I understand your reasoning, although it sounds as if this will never be truly resolved short of litigation (which we all hope never occurs!).

My statement in the CLIR report that Edison recordings are in the "public domain" is incorrect, based on information subsequently received. If copyright did pass to the National Park Service then copyright would reside with the government. The government could even charge for the use of those recordings if it chose, since they were not created with taxpayer funds.

In fact my current understanding (and correct me if I'm wrong on this) is that technically almost NO recordings made in the U.S. are currently in the public domain, even where no owner or successor exists. The "public domain" is a legal construct, and since state laws (with very few exceptions) do not provide for the expiration of recording copyright, then there is no p.d. for pre-1972 recordings - at least until 2067. There may be no one to enforce such a copyright, which is functionally the same, but technically that does not make the recording p.d. Is this correct?

On the larger question of whether Edison recordings copyright did or did not pass to the NPS, you might be interested in an exchange that took place in my copyright column in the ARSC Journal in 2006. Your recollection that copyright accompanied ownership of the master recordings is more than "industry practice," it is embedded in at least some states' laws. The question was what happens to copyright in those jurisdictions when the master recording is destroyed? (Many companies destroyed their old masters; some recordings never had a "master"; and some patent-infringing masters were actually destroyed by court order). What happens to copyright where state law specifically ties it to ownership of a master?

Unfortunately the attorney who responded didn't answer the question, but rather suggested how to research it. Here is the exchange. I'd be interested in your view.

Reader Question

From a reader: I've noticed that state unauthorized duplication statutes vary in terms of how they
identify the "owner" of a sound recording. Some states say it is "the person who owns the master
phonograph record...from which the transferred recorded sounds...are... derived" (Connecticut
General Statutes, Sec. 53-142b, Georgia State Code Sec. 16-8-60, Hawaii Revised Statutes
482C-1; Illinois Criminal Code 720 ILCS 5/16-7, etc.); others refer to ownership of "the
original fixation of sounds... embodied in the master phonograph record...from which the
transferred recorded sounds are... derived" (Alabama State Code 13A-8-80; Alaska Statutes Sec.
45.50.900, Arizona Revised Statutes Sec. 13-3705, etc.); California has "the original fixation of
sounds upon a recording from which copies can be made" (Penal Code 653h); and so forth. This
all seems pretty straightforward in cases where a company still has possession of an original
physical master a father, mother, stamper, mould, open-reel tape, whatever. However, it's not
clear to me how ownership would be established in other cases, such as:
- Early cylinders that were sold to customers as "originals," recorded directly from
performances, or that were copied pantographically from soft wax masters that routinely wore
out as part of the duplication process.
- Discs pressed from masters that have been physically discarded or (as in the case of
American Zonophone) destroyed by court order.
In these cases, there doesn't seem to be any "master recording" either it never existed at
all or it no longer exists today. Would such recordings still receive protection under some or all
of these unauthorized duplication statutes, depending on how they're worded? How do these
standards compare with those used for determining ownership under common law copyright?

Patrick Feaster

Response

Yours is a challenging question because you identify two examples where, as you note, the
original recording (master or otherwise) has an unusual pedigree. To answer this question, you
need to begin by looking at various sources, both primary and secondary. First, do any of the
statutes define the words "owner", "ownership" or "recording" generally? Statutes often define
specific words or terms, and knowing the definition would be a good way to get a sense of how
ownership of these specific sound recordings are determined. Statute reporters also may include
notes and/or reported decisions relating to the statute that may be useful. If the statutes do not
include such definitions, then you should look to court cases, both state and federal, that might
interpret the statute and/or have facts similar to those that you describe. Cases serve as a critical
way to determine how courts understand the statutes at issue, which in turn would inform
analysis of the questions. If, after a thorough search, you find no cases, then it may be helpful to
find states with analogous statutes and see if they've determined the meaning of these words
and/or confronted a similar situation. While one state's interpretation of its laws is not, of course,
binding on another state, the analogies can be helpful to determine how one state may handle the
issue. If all else fails, you can always see if treatises and/or law review articles have discussed the
issue.
Of course, you always need to be aware of whether the specific sound recording falls
under federal or state law; as a general matter, sound recordings made after February 15, 1972 are
subject to federal law. Thus, the referenced statutes may not even be applicable to the referenced
recordings if the recording was made in, say, in 1973. If you follow these steps, you should have
a better idea what these statutes mean in your specific situation.
The above does not constitute legal advice and does not substitute for consulting an
attorney. David S. Levine, Fellow, Center for Internet and Society, Stanford Law School.

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