Topic: Copyright status of pre-war sound recordings

[thefringthing]

In the interest of possibly starting an Internet petition/social media campaign to encourage present-day rightsholders to release material produced by the pre-war American recording industry into the public domain, I'm trying to determine what persons or corporations actually hold, or claim to hold the copyrights on that material.

The legal situation, as far as I can tell, is that the copyright on sound recordings (but not necessarily the associated composition) published prior to Feb 15, 1972 in the US is determined by state law, except that all such sound recordings become public domain after Feb 15, 2067, if they haven't already. What exactly the individual state laws are, I have no idea. I've never found any evidence that anyone else knows what they are either.

In any case, here's what I have:

Claimant	Material
Sony Music Entertainment	Columbia, Brunswick (pre-1931), Vocalion (pre-1931), Okeh, Victor
George H. Buck, Jr. Jazz Foundation	Paramount
Universal Music Group	Decca, Brunswick (post-1931), Vocalion (post-1931)

That's a start, but obviously there's a lot more to fill in. Can anyone contribute? (E.g. There's a Starr-Gennett Foundation and a Gennett Records Facebook page, but who, if anyone, owns "Future Blues"?)

[oddenda]

SONY also owns Victor!

pbl

[thefringthing]

Thanks! I added that to the table.

[StoogeKebab]

I'm particularly curious regarding that example. Who, in fact, does own Future Blues? It was something I was seriously considering releasing on my album and I have no idea who has the rights to it!

[waxwing]

SK, unless your "album" is a rerelease of previous recordings by other artists, you are speaking about a different issue than the original poster. However there is a clear and pertinent discussion of copyright on wikipedia here: http://en.wikipedia.org/wiki/Copyright_law_of_the_United_States

Quoting some of the most pertinent paragraphs (my font coloration):

Works published or registered before 1978 currently have a maximum copyright duration of 95 years from the date of publication, if copyright was renewed during the 28th year following publication[39] (such renewal was made automatic by the Copyright Renewal Act of 1992; prior to this the copyright would expire after 28 years if not renewed). The date of death of the author is not a factor in the copyright term of such works.

All copyrightable works published in the United States before 1923 are in the public domain;[40] works created before 1978 but not published until recently may be protected until 2047.[41] For works that received their copyright before 1978, a renewal had to be filed in the work's 28th year with the Library of Congress Copyright Office for its term of protection to be extended. The need for renewal was eliminated by the Copyright Renewal Act of 1992, but works that had already entered the public domain by non-renewal did not regain copyright protection. Therefore, works published before 1964 that were not renewed are in the public domain. With rare exceptions (such as very old works first published after 2002), no additional copyrights will expire (thus entering the public domain) until at least 2019 due to changes in the applicable laws.

Before 1972, sound recordings were not subject to federal copyright, but copying was nonetheless regulated under various state torts and statutes, some of which had no duration limit. The Sound Recording Amendment of 1971 extended federal copyright to recordings fixed on or after February 15, 1972 (the effective date of the act), and declared that recordings fixed before that date would remain subject to state or common law copyright. The Copyright Act of 1976 maintained this until February 15, 2047, which was subsequently extended by the Sonny Bono Copyright Term Extension Act to the same date in 2067.[42] As a result, no sound recording can reliably be considered in the public domain in the United States before that date, even if the recording was in existence before 1923 and even if it originated in another country where it has entered the public domain.[dubious ? discuss][43]

In 2010, the US Copyright Office asked for opinions about bringing pre-1972 recorded music masters under Federal Law protection.[44]

So, in terms of your own performance of a song recorded in the pre war era, how do you find out if the song was renewed or if it is in the public domain? A song that was recorded and therefore published in 1928, like Future Blues (or was that 1930?), would have had to have been renewed in 1956. I think it is highly unlikely that a low seller, like Future Blues, would have been renewed at that time, before anyone was really aware that the Great Folk Scare was on the horizon. Actually I think it likely that many publishers never bothered to renew their entire catalogues of pre-depression country blues. Later, in the '60s when songs published in the post depression era came due for renewal, they might have thought differently, so I would expect Blind Boy Fuller's music to be copyrighted.

What I did for my CD several years ago was to use the online search machines at Harry Fox (Songfile), ASCAP, and BMI. I kept digital copies of my searches. In many cases, particularly for a song like Future Blues, you will find copyright claims by people like Stefan Grossman, various rock artists, and others. These are claims on their arrangements, so as long as you are clearly using Willie Brown's recording as your source, and either your own arrangement or your best attempt at Willie's arrangement, those don't pertain to you. You must remember that a copyright claim is just that, a claim. Many publishers will make a claim, hoping it will be paid without any questions asked. But the vast majority of pre-war blues do not appear, listed under the original artist, on any of the website listings I mentioned. If you have proof that you have done due diligence, you have every right to proceed. Let's face it, most of us will probably sell a fraction of the CDs we produce, i.e. in the hundreds. If a copyright claimant hasn't listed their song with the services, which you can prove you searched, the worst they can do is demand a royalty payment of around a hundred bucks (for the 1st 1000 copies, I think), but I would sure ask them to show documentation of renewal. In producing my CD I think I found what I felt were legit claims on 3 or 4 out of 14 songs, so I paid them through Harry Fox. Knowing what I know now I would have definitely asked for documentation of renewal before I paid the claim. Of course, having sold only a handful of CDs I'm pretty sure I'm well under the radar of Harry Fox (even i I did get on Pandora).

BTW, recently I had ads pop up on the YT video of Down the Dirt Road Blues I posted. I challenged the claim, stating that the original writer, Charley Patton, died in 1934, more than 75 years ago, and the ads disappeared. Now I've gotta go after the ones on Viola Lee Blues, which I'm sure relate to the Grateful Dead version. (wink)

Unfortunately, thefringthing, as you stated, the confusion with the copyright of actual sound recordings having been left up to the states sure makes a daunting mess. I'm wondering if you researched individual states, maybe you could find the most lenient state, possibly one where all sound recording copyright lapsed after 50 years or something like that, and publish a web site from that state with the recordings? I'm pretty sure states do not have, nor are likely to institute, the capability to block websites from other states, like some countries do. I know, silly thought.

There was actually a recent article in the New Yorker decrying the nature of US copyright, which, according to the article, was originally intended to allow artists  and creators a reasonable time to make gains for their creations before those creations became available to others, for the public good. A lost concept, that.

As to Future Blues, my B&GR shows, as I suspected, that it was originally a Paramount release, later licensed by, or transferred to, Champion(Gennett). It would be good to find out whether the George H. Buck, Jr. Jazz Foundation rescinded that sound recording license, if it was a license, as is their right. I'm not sure what the limits of a transfer are, but there was info about this in the wikipedia article.

Wax

[StoogeKebab]

Thanks for the info Wax, I apologise for going off topic, I accidentally started a small label (how I will release), and neither of the two of us are copyright experts, let alone US copyright experts (glad my business partner's father is a lawyer) and I wasn't aware there was a difference. The main point of the album anyway is to allow a legal, 'proper' release of some music I might perform when promoting my Son House documentary on radio, TV, online etc. so I am performing my own arrangement, not Son House's and therefore not paying every time I perform, rather simply to release.