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Unauthorized? Cough. Please. That sounds far too convenient. Where does the burden of proof lie? Is there any evidence of the author attempting to seek a cease and desist of publication?

If proof is not necessary, will the "unauthorized" defense become commonplace?

When you're talking about recordings, it's even more complicated... and *far* more restrictive. According to Tim Brooks, we have a situation where preservation copies created by archival institutions are technically illegal. The 1976 Copyright Act specified that it only applied to recordings made after 1972. Any recordings created prior to 1972 remained under state law. In 2005, the NY State Court of Appeals (Capitol v. Naxos) declared that recording copyright was actually governed by common law.

CITATION: Tim Brooks, "Only in America: The Unique Status of Sound Recordings under U.S. Copyright Law and How It Threatens Our Audio Heritage" (American Music, Summer 2009).


I suspect it would only apply in cases like the "Happy Birthday" example where a copyright owner later registered a work that had previously been published (but supposedly without authorization). And remember that under 410(c), registration constitutes "prima facie evidence of the validity of the copyright." That means that it would fall upon the presumed infringer to prove that the earlier published version was authorized.

Again, this is unlikely. But it does indicate how difficult it is to say anything with certainty about the public domain status of a work.

So the burden is on the copyright owner to show that earlier published versions were not authorized? Sounds nearly impossible. How does one prove a negative? There would have to be a smoking gun like a document from copyright owner saying "I do not authorize you to publish this work!"

There is a crucial omission in the basic outline mentioned here. The melody, originally entitled "Good Morning to All" was first published in 1893 as part of a collection "Song Stories for the Kindergarten." That was a fully authorized publication. The melody, therefore, is public domain.

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