Re: Sound Recordings

>>> "Cumbow, Robert" <RCumbow[_at_]GrahamDunn.com> 09/28 4:40 PM >>>
When were sound recordings first covered by copyright? <<<<<

Sound recordings were first protected by federal copyright on February 15, 1972. Recordings made prior to that date can be protected by state common-law copyright until Feb. 15, 2067.

>>>>>
Could a film maker use, in a film, a recording of a public domain musical work that was recorded before that date, without infringing? For example, say the Berlin Philharmonic made a recording of Mozart's 40th in 1953, and the film maker takes the performance from a famous-label LP distributed in 1953 and uses that for the music in her film. No infringement? <<<<<

No infringement of federal copyright; but you would have to research state common-law copyright to see what it provided. Most of the state laws that existed prior to 1972 covered record piracy, but they might be broadly written enough to cover "synch" rights. Not surprisingly, New York and California had the most developed law on this subject.

But the question raises difficult constitutional issues of the geographical reach of state laws. Arguably, California law could only prohibit the reproduction and distribution of the sound recording in California; and it might be unconstitutional to apply California law to uses outside of California. This problem is discussed in the trademark dilution context (prior to 1995, all dilution law was state law) in David S. Welkowitz, Preemption, Extraterritoriality, and the Problem of State Antidilution Laws, 67 Tulane L. Rev. 1 (1992).

Given all the uncertainty, no doubt most users find it easier just to negotiate a license from the orchestra and/or the record label.

Tyler T. Ochoa
Associate Professor
Whittier Law School Received on Tue Oct 03 2000 - 17:34:14 GMT