This is the second of a 4-part series on issues in music copyright. Part 2 will provide an overview of the duration for musical composition and sound recording copyrights.

As we discussed in part 1 of our series, music copyright is broken down between musical compositions and sound recordings. It is important to keep this distinction in mind when considering the duration of either of these copyright terms, because different sets of laws will govern the duration of the copyright depending on the type of work being considered (sound recording or musical composition) and when that work was created.

Musical Compositions: Copyright duration for fixed musical works, including original compositions and original arrangements or versions of earlier works, follows the same termination timeline as other literary works. Duration for the musical composition copyright will depend on a number of factors including the time in which the work was created (the time in which the work was fixed), the time in which it was published, who created the work, and whether proper renewal and registration was filed. The following tables explain how copyright duration varies:

Created on or after 1/1/1978

Duration
One author Life of the author + 70 years
Joint authorship Life of the last surviving author + 70 years
Work-made-for-hire; anonymous works; pseudonymous works 95 years from publication or 120 years from fixation, whichever is shorter. If an anonymous author is later revealed, life of the author + 70 years.

 

Published before 1/1/1978

Duration
Works published before 1/1/1923 In the public domain
Works published on or after 1/1/1923 and before 1/1/1964 + proper renewal (including registration) filed 95 years from publication
Works published on or after 1/1/1923 and before 1/1/1964 + proper renewal (including registration) NOT filed In the public domain
Works published on or after 1/1/1964 and before 1/1/1978 95 years from publication

 

Created but not published before 1/1/1978

Duration
All works In no case does copyright expire before 12/31/2002.
Not published on or before 1/1/1978 and on or after 12/31/2002. Use same rules for works created on or after 1/1/1978 (from chart 1 above), but in no case will copyright expire before 12/31/2002.
Meanwhile published on or after 1/1/1978 and on or before 12/31/2002. Use same rules for works created on or after 1/1/1978 (from chart 1 above), but in no case will copyright expire before 12/31/2047.

Prior iterations of U.S. copyright law required published works to contain a notice including either © or ℗ (for sound recordings), the year of first publication, and the name of the copyright owner.  Works created on or after 3/1/1989 no longer need to contain a notice, but earlier works are still bound by the requirement. To see how compliance and noncompliance with notice requirement affect copyright duration, see Peter B. Hirtle’s Public Domain chart.

Sound Recordings: Sound recordings were not granted federal copyright protection until the passage of the Sound Recording Act of 1971. As a result, the law governing the duration of a sound recording copyright will vary depending on the time in which the work was created.

For works created on or after 2/15/1972, copyright duration mirrors the general rules that we see above for musical compositions created on of after 1/1/1978.

Created on or after 2/15/1972

Duration
One author Life of the author + 70 years
Joint authorship Life of the last surviving author + 70 years
Work-made-for-hire; anonymous works; pseudonymous works 95 years from publication or 120 years from fixation, whichever is shorter.If an anonymous author is later revealed, life of the author + 70 years.

Like musical compositions, sound recordings made on or after 2/15/1972 must also comply with proper renewal, registration, and notice requirements.

Works published on or after 2/15/1972

Duration
Works published on or after 2/15/1972 and before 1/1/1978 + proper notice filed 95 years from publication
Works published on or after 2/15/1972 and before 1/1/1978 + proper notice NOT filed In the public domain
Works published on or after 1/1/1978 and before 3/1/1989 + proper notice NOT filed + subsequent registration NOT filed In the public domain
Works published on or after 1/1/1978 and before 3/1/1989 + proper notice filed Use same rules for works created on or after 1/1/1978 (from chart 1 above).
Works published on or after 3/1/1989 Use same rules for works created on or after 1/1/1978 (from chart 1 above).

Works created prior to 2/15/1972, will be governed by state law. Protection typically comes from state statutes, state copyright common law, misappropriation, or unfair competition.

Traditionally, common law protection ceases at the time of the publication of the work, though state law protection may still exist under a separate property right or theory of unfair competition. Following the 1976 Copyright Act, “publication” of sound recordings under federal law included the public distribution or sale of those phonorecords, but not the public performance or display of the work. The Act, however, only applies to those sound recordings made on or after 2/15/1972.  As to sound recordings made prior to 2/15/1972, states may define what is required for publication under their own law, and may specify whether publication of pre-1972 sound recordings is required to cease state law protection.

Because copyright duration for sound recordings could be potentially indefinite under state law, Congress set the latest date for protection as 2/15/2067. After that point all sound recording created before 2/15/1972, if they have not done so already (California, for example, provides for exclusive ownership in a sound recording until 2/15/2047) will enter into the public domain.

*Termination of Transfer: It is also important to keep in mind that the duration of the grant of a copyright may be affected by the termination of transfer right provided in the Copyright Act. For more information on this right see part 3 of our series on music copyright in which we discuss how the termination of transfer right works.

This blog has provided an overview of the duration or music copyrights. In the next part of our series we will look closer at the termination of transfer right and how it may be used.

 

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Maria Scheid is a legal intern at the Copyright Resources Center at OSU Libraries and is currently a student at The Ohio State University Moritz College of Law.