Status of copyright and public domain for recorded music
A PERSON creates and society grants for a resonable period of time, exclusive commercial exploitation ownership rights to an authored work. After this limited term, society reclaims these rights entirely for the public domain. Neat concept, but the devil is in the details.
Today, the federal laws cover a work from the time it's fixed in form, by writing down in a journal for instance, until returned into the public domain by a process called "copyright". State and common law fill the gap between concept and "getting it down on paper" [or recording]. For music that applies mostly to protection of performers, it is state law, not federal copyright that insures that musicians get payed at the gig with one exception. The digital media act applies some royalty charged on blank recordings to a performer's fund. Some states still have laws refering to undistributed or original recordings, but they have been completely superceeded by Federal statutes that cover all fixed media, published or not.
If it's your idea, you own it; however preventing theft is mostly your problem at least until it falls into federal protection. Of course, if someone else were to independently come up with a very similar idea, they get equal protection. In this way "patents" and "copyrights" are very different, if your song just "sounds" just like another, it's not infringement as long as it was the result of your original creative effort. Also for music compositions, recordings can be made in certain instances without the author's permision and not be an infringement.
GETTING PUBLISHED
Prior to 1978 the situation was considerably different. In those days federal protection laws were active only after publication. This created an even wider gap requiring state/common law protection. For example, suppose you have a diary of experiences and one day a friend looking through it finds an interesting entry about your first day in town. He puts this into the newletter he writes for the community historical society. This exerpt is now PUBLISHED and federal copyright rules apply. The newsletter carried no copyright notice, thus the article now becomes public domain, even if done entirely without your permission. The rest of the diary of course remains your property, and you could sue your friend for the indescretion in stealing your common law property. Prior to federal law changes, your diary could be so "protected" forever, since most states did not specify term limits for unpublished works. Currently EVERY fixed work, published or not, either has or will eventually enter the public domain. Every author also has the right to place their own works directly into the public domain. And, as in the example, many older works are already in public domain for a variety of other reasons. The point is this, all works must eventually flow into the public domain including phonorecords.
EXCUSE ME BUT WHOSE RIGHTS ARE THESE?
For publications of fixed sounds on audio only recordings, the rules are somewhat complex. Note that films/television/stage plays/video or any presentations with a visual content have their own set of regulations. The first consideration in music is the copyright of the composer. Suppose you write a fine song, your publisher sells copies to a local band, and they pay a royalty to perform it at the public occasion of the grand opening of the new city music hall. All is good and right with the world, there is money in your pocket. At the performance, a radio truck, say from the CBS network, sets up a microphone and broadcasts the gala event. A technician at the station tape records the live feed. Next year, CBS Records publishes it and sells a million copies. Meanwhile you have rent to pay and no one seems to be buying your sheet music anymore.
Whats wrong with this picture? As holder of copyright, you are the only one entitled to exploit the music for profit. CBS says it was a "Public Performance" therefore "Public Domain". CBS loses/YOU win but beware, this IS an imaginary story. Federal copyright law applies to the publication of phonorecords, at least since 1909. LPs even had the unique distinction of not needing to display that pesky copyright symbol © and date. Reason, if the music composition is published then the "copyright" notice has to appear elsewhere, most likely on your printed sheet music, so its absence on the record label is inconsequential to otherwise protected work. The term of protection is from the time your music copyright was secured (ie at first publication), not the year the record was pressed because the music encased in the vinyl is a derivative product not to be considered a new creation. Thus record producers have to either pay a royalty negotiated with the composer or pay compulsary mechanical rights to the copyright office in favor of the composer.
If the composers rights come first, then the performer has a copyright that comes second. Performers rights die as the fading echos in the music hall. This is much to quickly to fill out and file the required paperwork that would be required to get any kind of federal copyright issued. The performers (Band, singer, conductor, tape recording machine technician, audio board mixer....) have a MOMENT of glory as they transform the sheet music into the audible sounds caught by the microphone imediatly prior to becoming a permanent fixed original sound recording. Their rights are covered in California by the civil code section 980.a.1 because a performance by definition is transitory. Often these people were on the payroll of the recording company so it was ususally considered, especially in the 1960s that they worked-for-hire which gave their employer the copyrights automatically. Work-for-hire these days normally requires a written statement for the release of copyright. Either way, the performers do NOT accrue a recognized entitlement to profit from the further use of the original recording AFTER it is fixed. For regular musicians, the rule is, get paid at the gig. A recent twist on this is the digital recording act allows distribution of fees collected on sales of blank digital recording media to go partially to performers. The only hitch is no one can figure out an equitable method on deciding exactly how to pay it out, and as long as anyone objects, nobody gets a dime! This is bureacracy's finest hour.
PHONORECORDS
Prior to February 15, 1972 the EXCLUSIVE right to the commerical exploitation of music was solely held by the composer, and included any media he chose to convey his copyrighted creation to the awaiting public:
Sheet music and printed publication
Public performances
Broadcast by radio
phonorecords (copyright office lingo for CD or vinyl record produced for public use)
And shared with other rights holders in produced items like television shows, broadway plays and hollywood movies.
Then the copyright office gave the recording companies the exclusive right to make money from phonorecords irrespective of the source of sounds that might be entombed in them. To say that this created a new class of copyright is certainly an understatement. The stated justification was the international concern for bootleg recordings emmanating from America and polluting the rest of the world. Or essentially it gave the hen house keys to the directly to the wolf.
Anyway this was done with the best of intentions to protect the profit stream that supposedly goes to reward composers and performers at least indirectly. The most straight forward approach to improving composer royalties and performers contracts would have been the elimination of the mechanical rights law. This bizarre rule has the effect of artificially setting a cap on royalty payments. Defenders state that composers regularly accept rights payments less than the amount required by the compulsary license regulation. Of course, to ask for MORE would only allow the record company to claim their mechanical rights and make the recording without permission from the composer. But more to the point, it prevents the composer from establishing an exclusive recording agreement. How many book publishers would offer a lot of money to an author, if when the story becomes popular, as many publishers as wanted could print their own version without either asking permission or negotiating a contract. And the same holds true for performers. If they sign too good a deal, the record company can get another performer to "cover", usually at less expense, any potential hit recordings you thought you had. After all the record company controls distribution and they can decide which recordings actually go to the store.
This new form of protection was for phonorecords, which are the vinyl records, cassette tapes, CDs and such as you buy in the store. Because these have their very own unique form of protection, they were given a special symbol, this time a circle (P) with date of first PRODUCTION. It is very important to distinguish that the sounds embodied in these items made for sale is NOT the same class as those fixed in an original studio recording. Circle (P) protection does not flow from an original fixation that formerly was the subject of common law or State protection.
POSITIVE ABOUT THE NEGATIVE
This is comparable to photography. Generally the photographer's negative is never seen by the public or published as such. The view captured may be printed in a magazine, thus it is that printed expression that is copyrighted upon publication. Some photographers, who worked for government agencies saw their prints placed into the public domain, because the United States government does not retain copyrights for itself. If a photo were to image a work that contains a copyright, say a bronze statue, a subsequent print publication would be possible only if permission could be obtained from the sculptor. Similarly if a model posed (performer), a clearance for the transitory appearance of that person [and payment therefore] is needed under state law before the photographer has rights to the print. A fine art photographer will tell you that seldom is a "straight print" made. Compared to the negative, it is cropped, contrasts adjusted, trashy details removed, extra features added (posssibly from yet a different negative), so that in reality every print is a produced item. And prior to the dropping of the publication requirement, it was only this visual produced item (print) that could be the subject of federal copyright protection, or alternatively loss thereof to public domain.
With the possible exception of sound recordings that were fixed incident for use in radio broadcasting, the original fixed performance is never heard or played to the public. It is unpublished, a diamond in the rough. The stereo recordings from the fifties were often three track and later multitrack machines capable of up to 32 simultaneous recordings were commonly used to make an original fixation. To produce a phonorecord, various mix-down and other editing and possibly re-recording techniques would be employed. These steps eventually produce a stamping master, either grooves for LPs or pits for CDs. For pre-recorded tapes, a four track master is made so that both "directions" are recorded in one pass at high speed, this is true both for reel-to-reel and cassette formats. Audiophiles can detect the subtle differences employed by the record company to generate these sub-masters that were prepared to make LP, CD and tape versions of the same music performance. The differences include how the tracks were blended together (mixdown), control over total dynamic range (volume control settings), side chain processing (reverb, hiss elimination), and frequency filtering. And even for classical music, its not uncommon to add elements not present at the original sitting of the orchestra, such as chimes, extra horns, cannon blasts to give the "1812" overture a little more punch. Overly long performances were known to have been snipped short by judicial razor edits. The phonorecord copyright applies only to the produced and distributed product:
1. Its copyright term begins at the time of production of the phonorecord, without respect to or consideration of the date of composer's copyright or the date or location that the original performance was recorded.
2. It enjoys full copyright protection even if the underlying composition was in the public domain, or even if it was made without the composer's permission.
3. It enjoys full copyright protection even if the underlying fixed original recordings were made prior to 1972, or may have have fallen into public domain.
Some classical recordings on CD with full phonorecord protection are actually made from old 1950's performances that fell into public domain prior to 1972. The "Masters" never die, they just get re-mixed. And of course, it is the producers of these gems that are solely entitled to profit from their commercial exploitation. Phonorecords were produced prior to 1972 by license of the Composer whose copyright effectively determined the disposition of the phonorecord. It is a situation identical to book publication. When the author's copyrights expire, the public can freely exploit any derived version. If new a book is published that contains public domain material, it remains public domain because the mechanical act of running a printing press does not create, only a person can do that. Usually a publisher of out-of-rights materials will add features such as a forward, illustration drawings, cover-art and story revisions, these added items (considered by themselves) can have copyright protection. Just because a volume may carry a copyright notice, does not always mean that parts of it are not already in public domain. A clever trick that is legal and often useful. Phonorecords published prior to 1972 often contain copyrighted materials such as cover-art, liner notes and of course a trademark for the company, like "Columbia". Incidently "Columbia" is the trademark for EMI in England, the principle competitor for "Columbia" in the United States.
However, prior to 1972, the phonorecord itself (the sounds that can be made to be reproduced from the supplied media, typically phonograph records) as a condition of distribution in the United States, is public domain. See Copyright Office Circular #22. Why did congress decide this in 1909? It was to resolve whether the Patents concerning recordings or Copyrights of an authors composition would benefit from record sales. This drama was to be played out in more recent times concerning the issue of Copyright versus Patent in computer software. In 1909 the comparison of a printing press used for print publication looked for all the world to be exactly comparable to the presses that were producing phonograph records. At that time no copyright was given for the setting of type as that was not considered an intellectual creation, the act of creativity was the author who wrote the stories in the first place. The acoustic method of music reproduction had no editing so the recordist was simply making a mechanical copy of a performance, not requiring any significant intellectual input on his part. So was it not the composer of the music that made the only significant intellectual contribution to the making of a phonograph record?
However by 1970, the ease of making copies, by xerox for publications, and by cassette tape recorder for audio caused industry to demand some form of copyright relief. Today publications enjoy a kind of "artwork" copyright, separate from the story content, to control piracy by direct photocopying. The phonorecord circle (P) designates this protection for audio publications. When these rules became effective, copyright was still tied to publication and registration, and thus term limit was a straight forward calculation. With the conversion of intellectual copyrights to death of the author in 1984, it is yet to be resolved how these non-intellectual copyrights will flow into public domain. Europe was first in the copyright of recordings with the Treaty of Rome, and these works were also designated with a circle (P) for "phonogram" but this is not recognized in the in USA. Also protection limit was 20 years from date of the original performance so these phonograms are long in the tooth now. Since 1972 most European record companies register their works in the USA in order to obtain our very generous protection rights.
URUGUARY ROUND AGREEMENTS
With respect to admitting there is a world of existance OUTSIDE the boundaries of America, we made the first move in 1955 by joining the UCC or Universal Copyright Convention. While a good move, this particular document covers only visual authored work. In 1961 the United Nations sponsored a major work called the Treaty of Rome to establish a similar international understanding for recorded music, or phonograms in their lingo. Widely accepted everywhere BUT not in the United States, where we held fast to our tradition of public domain phonorecords and compulsary licensing. However since the "reformed" regulations that were initiated in 1972, international understandings have progressed steadily, leading to conformation with the Berne Convention in 1984. And the crowning glory in 1994, the Uruguay Round Agreements Act (URAA for short), that among other things, for the very first time ever has reversed the public domain status in the United States to certain works (mostly movies) previously denied protection solely because of foreign production. Of course, to earn the restored copyright, such works have to still be protected in their country of origin. Many industry experts were stunned to discover that pre-1972 foreign phonorecords were summarily excluded from restoration consideration by the copyright office.
Why? Because they were already protected by copyrights in the United States. The catch 22 for foreign producers was that without an international agreement to establish standing under a State or common law, they could not take their claims of infringement to court. But for the last 20 years most of these countries have joined trade agreements with the United States, it's just that our state department people (bless them) never made it a big point that they should start suing American citizens and companies in state court over copyright infringements. Foriegn companies apearantly assumed (wrongly) that federal regulations were the ONLY law that affected copyright. However remember that we are discussing true foreign copyright media; that is, it was never produced or distributed in the US by a bona fide rights holder. Companies with foriegn sounding names like "London", "Deutche Grammaphone", "Sony" and such regularly authorized the sale or distribution of their products in the United States marketplace, which under federal rules constitutes publication. Funny as it sounds, only those records that were black/gray market (smuggled past customs or brought in by returning tourists) have any special copyright protection!! But in any event, even these LPs would have to still be protected in their country of publication. General term limits of phonograms internationally, as specified in the Geneva exetention of the Convention of Rome, is 20 years, thus a 1971 or earlier phonogram is long in the tooth by 1996. There is no such thing as "life plus fifty" years for international mechanical media.
The URAA does impact on music recording rights in the United States in another way because it restores copyrights to composers that published music in the former Soviet Union:
Khachaturian,
Prokofiev,
Rachmaninoff,
Shostakovitch
and Stravinsky
among others, whose works have been widely recorded. This also will restore protection for music on their pre-1972 phonorecords, effective January 1, 1996. If you go to the ASCAP website, you will see that they are very proud of this event. This is because in recent years they have been agressively trying to attract european composers, and now they have added these to their portfolio, representing about 3000 tunes and counting. What ASCAP is not telling it's affiliates is that many thousands of arrangements previously granted copyrights on these very same tunes are summarily invalidated, and that hundreds of American composers will be getting a SMALLER paycheck this year. OOPS.
REVERSAL OF FORUNE
Another "Feather" in the ASCAP cap is the recent legislation to "reverse" the effect of the famous La Cieniga Music vs ZZ Top case. According to ASCAP, "many" composers relied on advice from idiot lawyers, that knew nothing of the music business, that told them they did not "need" to register copyrights prior to 1978. Unfortunately, the publication of a phonograph record is publication. And if the author fails to register a copyright upon publication prior to 1978, the work becomes public domain. Thus ASCAP prevailed upon a soft hearted congress to pass retroactive legislation declaring:
"The distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of the musical work embodied therin."
Holy foul-up!! Prior to 1972, a copyright could not be granted for any work that had not been published. Most all independent musicians used the phonorecord as the required evidence of publication, since getting commercial sheet music printed was just a dream. Thus ASCAP has just invalidated all of the properly registered copyrights that poor musicians held prior to this radical change of law, just to reward a few famous scoff laws. No doubt next year, ASCAP will tell congress that it was relying on its own idiot lawyers, that knew nothing of the music business, and would they PLEASE change the law again so that copyrights previously based solely on phonorecord publication be preserved.
BOTTOM LINE
OK, so are there any stereo phonorecords in the public domain, meaning that just anyone could use that material for any purpose, without permissions?
Yes, any phonorecord (that is the manufactured item, not original fixation) published in the United States prior to February 15, 1972, that does not contain an unexpired copyright of music composition or arrangement. While these can be found at occasional yard sales, they are usually flawed by the fact they are 35-50 years old and simply wore out. Many were produced in such haste by the factories that they played poorly even when new. People remember how bad a product they often were and stick to buying CD versions only. But media producers (broadcast, video, corporate sales/training etc) still need resonable cost, high quality music for use with simple productions. Rights from recording companies are virtually impossible to obtain for less than 5 figures/ per use. No matter how reasonable BMI/ASCAP have been in representing composer's rights, use of CDs is out of the picture except for Network budget shows. And for audiophiles, many of these performances are simply the best there will ever be because of the general demise of symphonic capable orchestras (they just cannot attract top quality music talent anymore). And a few old performances have not made it out of the vaults of the record company and will never see a CD re-issue, especially those of URAA composers whose music they recorded originally without permission.
