Common law used to protect pre 1972 copyrights in US

May 2005

Record Labels, Artists

A ruling in a New York court is expected to have a major impact on the recording industry. Capitol Records had sued another New York-based recording company, Naxos of America, for copyright infringement of recordings of classical music it owns which were originally made by the Gramophone Company Limited (now EMI, parent of Capitol) and which had fallen into the public domain in Europe. In the United Kingdom and Europe copyright in sound recordings expires fifty (years) after the year of recording or first release. Naxos had begun to distribute its own restorations of the recordings. The District Court dismissed Capitol’s lawsuit, saying the UK copyrights had expired 50 years after the records were made and that US copyright laws don’t apply to recordings made before 1972, when federal laws were enacted. On appeal the Second Circuit noted that it was entirely up to New York to determine the scope of its common law copyright protection for pre-1972 sound recordings. New York State’s Court of Appeals ruled that common law in New York protects ownership interests in sound recordings made before 1972 that aren’t covered by the Federal Copyright Act. An attorney for Capitol suggested the ruling means artists, their estates and others involved in recordings made before 1972 should be able to collect US royalties for their performances.

US Attorney David Moser adds: This is an interesting case although admittedly confusing. Basically, up until 1972, the federal U.S. Copyright Act did not recognize sound recordings as a type of copyrighted work. In 1972, the law was amended to add sound recordings although in a more limited way than other types of copyrighted works (i.e., no public performance right). However, until passage of the Copyright Act, the U.S. had a dual copyright system – federal copyright as well as common law copyright under which states could give protection to works not protected under federal copyright. The New York court is apparently saying that even though the UK copyrights had expired & federal U.S. copyright is not applicable to pre-1972 recordings, they are nevertheless protected under N.Y. common law. Of course the practical problem is that a New York ruling is only applicable in New York so it doesn’t do much for ensuring uniformity.

Columbia Records, Inc. v. Naxos of America, Inc.

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