What is the copyright duration for recordings made before 1972?

Copyright is a set of exclusive rights granted to authors which allows authors to control how their works are used. United States copyright law uses the word authors frequently in the law, but composers, artists, and may other creative people are considered authors under the law. Copyright law originally granted protection to books, paintings, sculptures and musical compositions. Sound recordings were not granted copyright protection until the 1972 Copyright Act.

Although sound recordings were first given federal copyright protection in 1972, sound recordings made before February 15, 1972, remained protected under state law rather than under the federal copyright statute. Because state law protects sound recordings made before 1972, there are many different laws for sound recordings made before 1972 in the various states, and the scope of protection and of exceptions and limitations to that protection is unclear. Thee current federal copyright law provides that sound recordings made before 1972 may remain protected under state law until February 15, 2067. After that date the the sound recordings will enter the public domain. When something enters the public domain that means the copyright has expired and the public is free to use the work.

When the copyright on a sound recording is infringed, it is typically in one of two ways. The right of reproduction, which is the right to make and sell copies of a sound recording. Or, the right of public performance, which is the right to play the sound recording to an audience.

It is a principle of United States law that when the federal government creates a law, states cannot pass laws that conflict with the federal law. In the case of copyright law, the federal government has made copyright infringement an exclusively federal law matter. This means that state courts cannot hear copyright infringement cases, if a copyright infringement suit is filed in a state court, the state court will generally refuse to hear the case or the defendant can request that the case be moved to federal court. This creates an interesting situation because in general only federal courts hear copyright infringement cases and sound recordings made before 1972 can be given protection in state courts.

Some states have statutes which specifically deal with sound recordings made before 1972. These states can have both criminal and civil causes of action which deal with copyright infringement of sound recordings made before 1972. Other states apply other statutes or common law principles to the issue of copyright infringement. Common law copyright is applied by some states, but at the common law, only unpublished works were protected, so the courts are left to figure out how to deal with published works. Other states apply principles of unfair trade practices, the reasoning being that a sound recording is a business asset and the copying of the sound recording damages the business of the owner of the sound recording. In general, state courts have difficulty dealing with copyright law because it is uncommon in state courts.

In 2009 the United States Copyright Office was asked to study the issue of sound recordings made before 1972. The United States Copyright Office noted all the difficulties of the present system and suggested that sound recordings made before 1972 be brought into the federal copyright system. As of today a bill to bring sound recordings made before 1972 into the federal copyright system has not been passed.

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