Common Law Copyright Protection of Old Sound Recordings

August 26, 2011

Sitting in the archives of many university libraries are old analog sound recordings stored on formats such as phonograph cylinders (the “Edison cylinder”) or vinyl records.  Due to a recent decision by the New York Court of Appeals, efforts by universities to digitize even the oldest of these recordings – dating back 100+ years – have been severely hampered due to copyright protections. The 1971 Sound Recording Amendments On February 15, 1972, federal copyright law protected sound recordings for the very first time via enactment of the Sound Recording Amendments to the 1909 Copyright Act.  However, the protection did not extend to recordings fixed prior to that date, leaving state law as the only protection for pre-1972 sound recordings.  Indeed, per the amendment federal copyright law does not preempt state common law or statues regarding pre-1972 sound recordings until February 15, 2067. New York Common Law Copyright Protection New York is one of several states that provides common law copyright protection for pre-1972 sound recordings (as well as several statutory bases for protection which are not discussed here).  In a 2005 decision, the New York Court of Appeals held that the Copyright Act does not preempt New York common law protection pre-1972 sound recordings, and that the common law protection extends to these works until the date of federal preemption in 2067.  Capitol Records, Inc. v. Naxos, 4 N.Y.3d 540 (2005).  In 2067, the oldest of these sound recordings will have enjoyed more than 180 years of copyright protection. The Copyright Office to the Rescue? In light of the strong common law protection for pre-1972 sound recordings, universities and other non-profits engaged in digitizing projects are hesitant to publish the digital files, potentially relegating these treasures to the depths of university libraries until 2067.  However, a solution could come from the Copyright Office itself.  The Office has recently held hearings on the issue of whether to federalize pre-1972 sound recordings, thereby preempting state common law much earlier than 2067.