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Tuesday, November 10, 2015

Edison Cylinder Recordings & State Law Copyright

The scope of copyright protection is notoriously indeterminate, at least in part because copyright doctrine relies so heavily on questionable metaphors and typically punts the ultimate question of "substantial similarity" to the jury. But the scope of copyright protection of sound recordings created before February 15, 1972 - if any! - is especially unclear. Every recorded song consists of (at least) two copyrighted works: a "musical work" or composition and a "sound recording" or particular performance of that composition. Under the Copyright Act of 1909, federal copyright law protected musical works, but not sound recordings. The Sound Recording Act of 1971 extended copyright protection to sound recordings created after February 15, 1972, but did not provide a "public performance" right, although in 1998, Congress created a limited "digital performance" right. As a consequence, copyright owners of sound recordings created after February 15, 1972 have the exclusive right to reproduce, adapt, distribute, and "digitally" perform the work, but not to perform it live or over the radio.

However, Congress did not address copyright in sound recordings created before February 15, 1972, which are protected - if at all - only under state law. As Kevin Goldberg has explained in a series of helpful posts, pre-1972 sound recordings are protected only by state law. (I also recommend posts by Tyler Ochoa and David Post on this subject). Most states (with the exception of Vermont), have created state law copyright protection for pre-1972 sound recordings, but typically (with the exception of Tennessee) explicitly do not grant a public performance right to broadcast sound recordings. But those state laws typically do not address "digital" performance. And that recently became an issue when Flo & Eddie (originally of the Turtles) filed a series of class actions against digital broadcasters like Sirius XM and Pandora, which they have now expanded to broadcasters as well, several of which they have won or settled. (Full disclosure, I joined amicus briefs filed in some of these actions by Tyler Ochoa and Eugene Volokh.)

Obviously, extending the public performance right to pre-1972 sound recordings would reduce access to "oldies" by provide a disincentive to digitally perform or broadcast them. But the effect would be even broader than commonly realized. For example, the earliest form of commercial sound recording was the wax cylinder, produced between 1877 and 1929. The University of California at Santa Barbara has created the UCSB Audio Cylinder Archive, which provides digital access to more than 10,000 cylinder recordings. But as Zvi Rosen pointed out yesterday on Facebook, UCSB may be violating California Civil Code §980, which states that "The author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972, has an exclusive ownership therein until February 15, 2047." In other words, CA law explicitly provides that all pre-1972 sound recordings are protected by state copyright, even sound recordings produced before 1923, which would be in the public domain under federal copyright law. Of course, the Cylinder Archive infringes the reproduction and distribution rights in the sound recordings it houses, but if state copyright protection is found to include a digital performance right in pre-1972 sound recordings, UCSB couldn't even stream those cylinder recordings, let alone make and distribute copies. The Cylinder Archive is an immensely valuable resource, and it is hard to see any public interest that would be served by extending copyright protection to those cylinders, which have no meaningful commercial value. 

As a side note, while I am very pleased that UCSB has created the Cylinder Archive and made the recordings available to the public (in fact, Katrina Dixon & I have often included UCSB cylinder recordings in "The Bindle," the radio show we present every Monday from 10am to noon ET on wrfl.fm), I am concerned by UCSB's own copyright overreach. Specifically, the "copyright and licensing" page of the Cylinder Archives website claims, "MP3 files of the cylinders available for download are ©2005-2015 by the Regents of the University of California. They are licensed for non-commercial use under a Creative Commons Attribution-Noncommercial 2.5 License. Acknowledgments for reuse of the transfers should read 'University of California, Santa Barbara Library.'" But this copyright claim is almost certainly false, given the pretty well universally accepted principle acknowledged in Bridgeman Art Library v. Corel Corp. that exact reproductions of an existing work cannot be protected by a new copyright. UCSB does not purport to change the cylinder recordings in any way, it just produces the highest possible quality reproduction. As such, UCSB does not and cannot own copyrights in any of the recordings and cannot impose restrictions on their use, except by contract.


The Right of the People to Rule / Teddy Roosevelt. Edison Blue Amberol: 3707. 1919.

Posted by Brian Frye on November 10, 2015 at 05:10 PM | Permalink


Thank you. Their prior legal claim to these recordings confused the heck out of me.

Posted by: Todd | Nov 26, 2015 12:09:08 AM

Handle With Care https://youtu.be/pnsizkVjGm8

Posted by: Katrina | Nov 10, 2015 6:57:12 PM

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