The messy, messy copyright status of Edison phonograph recordings

In Tim Brook's excellent CLIR report Survey of Reissues of U.S. Sound Recordings, one finds the following statement:

One notable component of the public domain for recordings is the body of recordings made by the companies of Thomas A. Edison between 1890 and 1929. Legal title to those recordings did pass to a successor company; however, in the 1950s that company conveyed title to the U.S. government as part of an agreement with the U.S. Parks Department. Thus, Edison recordings can today be used without restriction.

The wonderful UC Santa Barbara (UCSB) cylinder preservation project web site repeats this assertion in its statement on copyright:

All Edison cylinders are presumed to be in the public domain as the assets of Edison Records were transferred to the National Park Service, a federal agency.

The National Park Service (NPS) itself doesn't go quite so far.  It notes instead that it "does not presume that all Edison recordings are in the public domain," but nevertheless will make copies of the recordings for users according to the exceptions in Federal copyright law (even though these recordings are not protected by Federal law, but rather by state common law copyright).

So which is right?  Are Edison recordings public domain, or are they still protected by state common law copyright?  A little while ago I decided to investigate.  Through the courtesy of the Edison National Historic Site, I was able to get a copy of the 1957 donation contract (actually of Bill of Sale) from McGraw-Edison Company (the successor to Edison's company) to the Park Service.  The Bill of Sale states clearly that McGraw-Edison was transferring "property, goods and chattels," along with "all privileges and appurtenances thereunto belonging."  Now deeds are far from being my area of expertise, but my understanding is that "privileges and appurtenances" is language that is used to accompany the transfer of physical property.  Courts have ruled that a written transfer of copyright does not need to use the word copyright if the intention of the parties is clear, but it does not seem to me to be at all clear that copyright transfer was intended.

Copyright could also have been transferred in accordance with the "Pushman Perogative."  The Pushman decision suggested that the physical transfer of the only copy of an unpublished work of art (and some would say manuscripts as well) also transferred copyright.  In theory, it could apply to music (and I believe I remember reading that normal industry practice assumed that when master recordings were physically transferred, copyright accompanied the recordings).

So the key question here is whether in transferring physical property, did McGraw-Edison also transfer the copyright?  Again, I don't see how one can conclude this.  One of the key components of the Pushman decision was that the work of art (or the manuscript) was unique.  The description on the Edison web site indicates that McGraw-Edison transferred published copies of the recordings.  Later the NPS did get 9,700 disc master molds from the Henry Ford Museum.  It might be possible to argue that McGraw-Edison transferred copyright in those masters to the Henry Ford Museum when it transferred title, and copyright was subsequently transferred to NPS with the discs.  But unless the 10,000 cylinders that the NPS got from McGraw-Edison were master recordings, it would be hard to argue that their physical transfer to NPS also transferred copyright.  And even if copyright was transferred with the physical recordings, it would not place the items in the public domain.  Rather the government would now own the copyright in the recordings (since the government is allowed to own copyright created by non-government employees).

Of course, this whole issue is likely to be moot.  McGraw-Edison never appears to have argued that it had a common-law copyright in the recordings.  The company has since been bought by Cooper Industries, and I bet that Cooper has no idea that it may own the copyright in the recordings.  The chance that Cooper would sue for common-law copyright infringement seems remote.  And as June Besek has found out in her study for CLIR, the exact parameters of common-law copyright are also hard to fathom, so Cooper may not have a case for infringement.

So the assertion that the Edison recordings are in the public domain would appear to mistaken. The recordings are likely still protected by copyright - and the copyright status of the recordings doesn't seem to matter.

The lesson in all this is that we should not limit ourselves to digitizing only when things are clearly in the public domain.  When UCSB, the Edison Site, the Library of Congress, and even commercial companies like Archeophone Records (which recently released a CD of indecent cylinder recordings from the 1890s)  make old cylinder recordings available for listening or purchase, they may be in technical violation of copyright law.  But they have not been sued, and the risk that they will be sued seem to be extremely low.  All digitization involves a risk assessment - and in making this culturally important material widely available, these institutions have made the right choice.

[Corrections: on 2 July 2008, I changed the title of this blog entry from "wax cylinder recordings" to "Edison phonograph recordings."  A commentator correctly noted that many different companies made wax cylinder recordings.  This post is only about Edison recordings.  And Edison made more than just wax cylinders, but also made cylinders of celluoid ("Blue Amberol cylinders") and disc records made of condensite ("Diamond Discs").  I have been told that given the fragility of wax cylinders and the durability of Blue Amberols and Diamond Discs, most Edison records that survive today are not wax cylinders.]

Comments

[Richard]

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

[Tim Brooks]

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.