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Why Recordings From World War I Aren't Public Domain 329

An anonymous reader writes "While Disney and others have done a great job pushing the end date for works entering the public domain ever further forward, most people have assumed that anything from before 1923 is in the public domain. However, it turns out that this is not true for sound recordings, in part due to an accidental quirk in copyright law history — in that Congress, way back in 1909, believed that sound recordings could not be covered by copyright (they believed the Constitution did not allow recordings to be covered), and thus, some state laws stepped up to create special copyrights for sound recordings. A court ruling then said that these state rules were not overruled by federal copyright law. End result? ANY recorded work from before 1972 (no matter how early it was recorded) won't go into the public domain until 2049 at the earliest."
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Why Recordings From World War I Aren't Public Domain

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  • That's a shame. (Score:3, Interesting)

    by Kireas ( 1784888 ) * on Thursday August 05, 2010 @07:57AM (#33148538) Journal
    It looks like my epic youtube video made up entirely of WWI soundclips will have to be put on hold. And yes, a video made entirely of soundclips. What now, huh?

    I'm interested however in the equivalent laws over here in the UK. Are we bound to the USA's system as part of some global copyright law thingy? I don't pretend to understand Public Domain, but I'd like to.
  • by RobotRunAmok ( 595286 ) on Thursday August 05, 2010 @08:10AM (#33148600)

    So, hopefully, in these economically-difficult times, some rights-holder someplace gets a coupla thousand bucks from some hip-hop artist intent upon incorporating turn-of-the-century jazz recordings into his latest opus.

    So, hopefully, in these creativity-starved times, some hip-hop artist forgoes mashing-up some other creator's work and goes the extra mile to invent something brand new.

    So, hopefully, some student whose research involves early recordings can't find what he needs on the Internet and visits a library for only the second or third time in his life, and a hundred news worlds are opened to him.

    I am hopeful that we will get through this...

  • by Bog Standard ( 743863 ) on Thursday August 05, 2010 @08:21AM (#33148658)
    Coming from the UK, I can understand how people can be extradited on US federal law charges. I'd be surprised if state laws apply too. For that matter how does this affect US citizens in say NY if the law is broken in CA?
  • What does this mean? (Score:5, Interesting)

    by stephanruby ( 542433 ) on Thursday August 05, 2010 @08:26AM (#33148692)
    Did all States create those copyright laws? Or did just some of them do? And what about materials recorded abroad, or broadcast abroad? Enforcing copyright law on a State by State level would seem to me like a very difficult thing to do.
  • Re:Guiltless thief. (Score:3, Interesting)

    by vwjeff ( 709903 ) on Thursday August 05, 2010 @08:44AM (#33148808)
    I agree. The individual artist should be able to profit from their work for the rest of their life. The problem is that a copyright lasts long after the artist is gone. Why does an estate get to profit off the work of a dead individual? If the owner in question is a corporation then the copyright should be valid for a fixed period of time. I would be ok with using the figure of the life expectancy of a female child born in the year the work was created. A female child born in 2003 has a life expectancy of 80.1 years according to the US government. If the rights are sold the copyright expiration should remain the same. If the corporation goes out of business and no one buys the rights then the work should go into the public domain. Individuals and corporations should be allowed to place their works in the public domain at any time during the copyright lifetime with the understanding that the work can not be taken out of the public domain.
  • Re:That's a shame. (Score:3, Interesting)

    by vipw ( 228 ) on Thursday August 05, 2010 @08:45AM (#33148810)

    Why can't American's buy them? I thought copyright controls copying, receiving a copy of something isn't copying. I think the real restriction is that Naxos can't sell them in America.

  • by metacell ( 523607 ) on Thursday August 05, 2010 @08:52AM (#33148860)

    The new findings are not a disaster, it's just yet another example of the ongoing insanity that copyright has become.

    So, hopefully, in these creativity-starved times, some hip-hop artist forgoes mashing-up some other creator's work and goes the extra mile to invent something brand new.

    There is nothing truly new. Even the most original composer is 90% influenced by the music he has already heard. Getting a jazz musician to play your newly composed jazz solo costs time and money. Sampling is a way for musicians without oodles of money (i.e 90% of them) to make decent music easier. It makes more people able to participate in the creation of our culture.

    So, hopefully, some student whose research involves early recordings can't find what he needs on the Internet and visits a library for only the second or third time in his life, and a hundred news worlds are opened to him.

    Why force people to use a less efficient tool (vinyl records and CDs at the library) when modern information technology is available in most homes?

    Working hard is not an end in itself. If something can be done easier (and probably better), let people do it the easy way, and spend their efforts where they're needed.

  • by TheRaven64 ( 641858 ) on Thursday August 05, 2010 @08:54AM (#33148882) Journal
    The Berne convention may complicate things. It means that works should be treated as if they were copyrighted locally, so a work from outside Ohio would be covered by copyright in Ohio. If you distribute it in Ohio, the owner would be able to get a judgement against you there and the fine would then become a debt, which could be collected locally wherever you happened to be in the USA. If you are outside the USA, you're probably safe though...
  • So who owns it? (Score:1, Interesting)

    by Anonymous Coward on Thursday August 05, 2010 @08:59AM (#33148924)

    Even if the recordings 'are' still copyrighted, doesn't the original rights holder or his agent need to file a DMCA takedown to do anything about it?

  • by tepples ( 727027 ) <{tepples} {at} {}> on Thursday August 05, 2010 @09:06AM (#33148978) Homepage Journal

    So, hopefully, in these creativity-starved times, some hip-hop artist forgoes mashing-up some other creator's work and goes the extra mile to invent something brand new.

    Even people who try to create something that they think is original sometimes fail. It isn't directly applicable to the case of the article (reproduction of sound recordings), but George Harrison got sued and lost when it was discovered he had accidentally copied the ten-note hook (5~ 3~ 2~, 5 6 8 6 8 8) from "He's So Fine" into his song "My Sweet Lord".

  • Re:Wilhelm Scream (Score:3, Interesting)

    by BetterThanCaesar ( 625636 ) on Thursday August 05, 2010 @09:21AM (#33149108)
    Not if they're licensing it from Warner Bros.
  • by Anonymous Coward on Thursday August 05, 2010 @09:36AM (#33149214)

    While I was writing my philosophy thesis, I discovered that many of G.K. Chesterton's works that he wrote in Britain between 1923 and 1936 when he died are public domain in Britain, where they were published.

    But they are not public domain in the U.S.

    One of my unfinished projects is to combine all his works that are public domain, and throw a full text index on it to make a little G.K. exclusive search engine -- but we're going to have to go with a non-U.S. ISP if I ever do get around to getting it off the ground.

  • My solution... (Score:3, Interesting)

    by night_flyer ( 453866 ) on Thursday August 05, 2010 @09:42AM (#33149274) Homepage

    If a recorded item, writing or whatnot is considered valuable, then the owner should have to buy a license to keep it out of the public domain after a reasonable and free period of time (like the original 7 years). after the free period is over the owner would have to make a determination if the item is valuable enough to pay for to keep it out of the public domain. This protects Mickey, but releases a whole slew of recordings and books that have no commercial viability.

  • by jonsmirl ( 114798 ) on Thursday August 05, 2010 @09:53AM (#33149348) Homepage

    The creation of orphan works is the greatest crime of all. And I have to wonder if the RIAA/etc are trying to use an orphan work strategy to suppress and destroy vast amounts of older works as a mechanism to encourage you to buy their new stuff.

    There is a very simple way to fix the orphan work problem. First 10 years copyright is free. For each 10 years after that it has to be renewed with a payment of say $5,000. If your work isn't generating enough income to cover a $500/yr renewal fee it isn't economically viable. The artist can then choose to let the work go into the public domain or continue paying $5,000 renewals.

    Artists will say, it's my work why do I have to pay the fee? Well it's not 100% your work, everything that is created is based on previous things that existed. Think of the $500/yr as a royalty payment to those previous artists via the government. We could even use those copyright extension payments to promote the creation of public art.

    Now both sides are happy. If a work is economically viable keep paying the $500/yr indefinitely. If it isn't, let the work go into the public domain. An excellent side effect of this is the creation of a database of who is paying fees which will tell us exactly which works are still protected.

  • by tverbeek ( 457094 ) on Thursday August 05, 2010 @10:06AM (#33149486) Homepage

    It works the other way around as well. The US vs. pretty much the rest of the world use different milestones to calculate copyright expiration. In the US it's the date of creation, elsewhere it's date of the creator's death. So for a long-lived creator who got an early start on his career, copyright on his early works would expire sooner in the US than elsewhere*, but for a short-lived creator or one who created works shortly before his death, those works will generally expire sooner in the rest of the world. (The US has changed its standard to match the rest of the world for new copyrights, but it'll be a while before that's relevant.)

    *Once upon a time it was possible for a creator's US copyrights to expire while he was still alive, which was obviously not possible elsewhere.

  • by unwastaken ( 1586569 ) on Thursday August 05, 2010 @10:07AM (#33149488)

    According to one commentator, Congress had two principal concerns about sound recordings, leading it to decline to protect them. First, Congress wondered about the constitutional validity of such protection. The Constitution allows Congress to protect "writings," and Congress was uncertain as to whether a sound recording could constitute a writing. Second, Congress worried that allowing producers to exclusively control both the musical notation and the sound recording could lead to the creation of a music monopoly.

    I found this to be the more interesting and exciting part of that quote:

    Congress wondered about the constitutional validity of such protection.

    That was probably the last time the constitutionality of a law actually came up in Congress...

  • Re:That's a shame. (Score:5, Interesting)

    by TrisexualPuppy ( 976893 ) on Thursday August 05, 2010 @10:18AM (#33149570)
    So I have several acetate discs from a radio studio in New York. They were recordings of the very first days of America's involvement in World War II. The radio network was purchased years ago and is owned by one of the "big boys" now. (Sucks how Clear Channel owns everything...) As far as we have been able to find, I am the only person even with any record (read knowledge) of this particular recording. So I have a piece of history that hasn't been released and would be really good to have in the public domain.

    So seeing that I am probably the only person that has this copyrighted material, whose rightly is it? Mine, the one guy in ten who was careful to not throw this old acetate disc of the estate? Or does it belong to that fat Clear Channel CEO who is at this very moment doing a line of coke off his secretary's &#*@?
  • Re:My solution... (Score:3, Interesting)

    by geekoid ( 135745 ) <`dadinportland' `at' `'> on Thursday August 05, 2010 @10:31AM (#33149722) Homepage Journal

    7 years is too short. Between editing, shopping the work around, and other time issues it needs to be 14 or 20 years.

    Some people will work 5 years on their first book. Also, some recording will sit on record companies shelves and not get wide pay for years after it's been recorded.

  • Re:That's a shame. (Score:4, Interesting)

    by Ixitar ( 153040 ) on Thursday August 05, 2010 @11:03AM (#33150140) Homepage
    IANAL: Possession does not play into this. The copyright most likely belongs to the radio station in New York. If not them, then the artist(s) that recorded the discs. Unless you have a document showing the transfer of the copyright to you, then you do not own the material. If the copyright owner decides that they want the recordings back, then you will probably have to turn it over to them.

    I would suggest that you ask the Smithsonian. If you would like the recordings to go into the public domain, then I suggest that they might be the proper avenue.
  • by Anonymous Coward on Thursday August 05, 2010 @11:43AM (#33150732)

    I just got through hearing the intro to a song on the radio thinking the artist stole most of it from a song in a really old anime. Then I realized the song was by Michael Jackson and he probably wrote it before the anime (~1992).

    This isn't the first time I've recognized series of notes out of a song that's also present in another song (sometimes in the same octal and key, even). I guess it happens when you listen to lots of music.

  • by russotto ( 537200 ) on Thursday August 05, 2010 @11:57AM (#33150906) Journal

    The exhaustion of exclusive rights after the first sale of a phonorecord (17 USC 109) applies only after the first sale on United States soil (17 USC 602).

    That's a point in dispute. There's currently a case pending before the Supreme Court about it, Costco Wholesale Corp. v. Omega.

  • by BlueStrat ( 756137 ) on Thursday August 05, 2010 @01:21PM (#33151910)

    -Encourage your children to tell their children to study hard in school, learn a useful trade-

    -Without some source of income, the kids won't have the money to go to a good school in order to study hard.-

    That involves a different and separate societal arrangement between two parties; employment. It works for everyone else that doesn't hold copyrights on valuable works. Why should the descendants of copyright holders be the exception?

    In other words, tell the lazy kids to get a job or hope that grand-dad left them wealth in the common forms everyone else uses like cash, stocks, bonds, etc. Locking down a societies' culture is a poor replacement for a life insurance policy.

    I agree with the notion posted elsewhere in this thread that copyright in its current "Disney Wish-List" form should be largely ignored.

    "An unjust law is no law at all." -Martin Luther King.


  • by snooo53 ( 663796 ) * on Thursday August 05, 2010 @01:42PM (#33152200) Journal
    Interesting! So that brings up the question: What is the threshold number of notes before a progression becomes a copy? Was that brought up in the case?

    Out of curiosity I googled it, and came up with this nice summary [], however it's still not entirely clear what constitutes a copy.

  • Re:Guiltless pirate. (Score:3, Interesting)

    by Omestes ( 471991 ) <omestes@gmail . c om> on Thursday August 05, 2010 @02:37PM (#33153032) Homepage Journal

    Your taking it a bit far. Copyright laws are not as important, or useful, as laws against murder, actual theft, or sex crimes. In theft you deprive someone of real property, and not just potential profit, in murder your depriving someone of their life as opposed to potential profit, and sex crimes your depriving people of bodily freedom as opposed to potential profit. Copyright downright inconsequential compared to your slippery slope examples.

    You aren't depriving anyone of anything except the MERE potential to make money off of you.

    I'm not arguing for rampant piracy, or that we should do away with copyright, just that your perspective is a bit off. Anyone with half a brain (and who is not a shill for Disney) will agree that copyright is deeply flawed, and will remain so because congress is looking out for corporate interests above the interests of the people. Copyright, as it stands, has become absurd. With the issue in TFA, we're dealing with a copyright that outlasts the creators own children (and perhaps grandchildren), if a creator can even be found anymore. This is the epitome of a broken law. Copyright should exist, but the way it exists now is almost evil, and getting worse all the time. The consequences vastly outweigh the actual effects of the crime (which are arguable, and minimal at best).

    Also, civil disobedience is an accepted practice, and not one bit controversial. If there is an unjust, and hurtful, law, then people SHOULD break it. Modern copyright is both. Though people who use this as an excuse to download the latest Britanny Spears CD are wholly in the wrong, and using it as an ad hoc self-serving justification for their own petty greed.

    I have nothing against people who download older music, whose artists are dead, or whose artists receive no money from their works. I have nothing against people who pirate to format switch. I have nothing against people who pirate to test the waters and see if they like the music (especially with radio being dead). Personally I have nothing against people who exclusively pirate from RIAA members, since the RIAA declared war on us, the consumers, there is no issue with fighting back. They will do everything in their power to screw us, so how is it really wrong to play the same game? I do have something against people who pirate from independent labels and bands (outside of the "test drive" piracy, where you buy it if you like it). I have no problem with people pirating things that they otherwise would not have bought (which means it is completely victim-less).

    If the only reason you follow a law is because it is the law there is a problem. Laws need, and should have, deeper justifications. I can tell you why theft is wrong 100% of the time, I can also tell you why murder is wrong 100% of the time (well less, but we call murder by different names when the motivations change). I can't really tell you why 100% of piracy is wrong, though.

    Also, following laws just because it is the law generally means someone has conflicted morality with legality, when the two are at a disjunct, even if ideally they wouldn't be.

What is algebra, exactly? Is it one of those three-cornered things? -- J.M. Barrie