I wish.........

[Pilgrim]

I really wish I had a good way to take on a project and not get sued. Here's the situation:

My daughter's boyfriend just passed along to us a couple of large tubs of 78 recordings. I'm not clear on which decades they span, but there are at least a 200 of them. In addition, I have another 100+ 78s which I inherited from my grandfather, some of which may go back to the 'teens, but most of which are 20's and 30's. Included among them is a record I remember listening to called "Floyd Collins' Fate". Collins was a famous cave explorer who was trapped in a cave in KY in 1925 and died after about two weeks while national media covered the rescue attempts.

Now, I know (based on reports and articles I've read) that only about 20% of the music ever recorded is still available "in print". The rest of the music either isn't commercial feasible to reproduce, or the trail of ownership is so lost in the mists of time that either it can't be traced or it's not commercial practical to do so.

BUT - I would love to take this whole collection, transfer it to digital, and create a website where people could come, surf the recordings and download their choices for maybe 25 cents each. It would provide a service to those who love old recordings, and perhaps generate enough money to make it worth my while.

The problem is the same one everyone has - rights to copy and distribute the music. I don't have them, and most of the recordings probably have owners that either don't realize they own the rights, or who can't be found.

I've thought about talking with a copyright attorney and asking whether I could go ahead with the plan and simply keep records of sales of each recording, and put a public notice on the site that if the owner of any recording contacts me, I will gladly share - or even pass along in entirety - the monies generated by the sale of any recording they can prove they own.

On a practical basis, this seems to me to offer the owner of such a property the prospect of generating income from a property which otherwise would generate nothing. However, operating without prior approval of the owner is probably not a good idea. Practical and legal are not syonymous.

Sadly, I suspect this is not a legally defensible position. But if it were, just think of the doors that one could open on the world of old 78s.

 

[Pilgrim]

Hmmmm...this isn't a legal opinion, but the site http://www.nolo.com/ says (in the article "Determining the Length of Copyright Protection"):

1. Works published from 1909 through 1921.
The initial copyrighted term of the work was 28 years from the date of publication. If the copyright was renewed during the 28th year, the copyright was extended for an additional 28-year period.

2. Works published from 1922 through 1963.
The initial copyrighted term of the work was 28 years from the date of publication. If the copyright was renewed during the 28th year, the copyright was extended for an additional 67-year period.

3. Works published from 1964 through 1978.
The initial copyrighted term of the work was 28 years from the date of publication, with an automatic renewal of an additional 67 years.

Interesting. Recordings in category one should be public domain now. I suspect most of these recordings fall into the second category - and if copyright wasn't renewed, they would indeed be public domain.

However, copyright law has changed more than once in the past 20 years, always to extend the life of copyright. Printed works and music also have slightly different protections.

The site http://www.serve.com/marbeth/music_length_protection.html says (in part):

"Copyright, always a confusing area to non-lawyers (and perhaps to some lawyers!) has been further complicated by the Sonny Bono Copyright Extension Act (1998). This act is on top of numerous previous changes in the length of copyright protection made from the early 1900s onward. Under the latest iteration of the law (1978), works by individual authors were protected until 50 years after the year of the author's death. The Bono extension increases this to 70 years."

And:

Summary of copyright protection after Bono (as I understand it):

Works published Jan. 1, 1978, and after are protected for 70 years after the death of the author. For joint works, it is 70 years after the death of the last author to die.

Works "published" by corporations and created by employees as part of their jobs (called work-for-hire) are protected for 95 years from publication or for 120 years from creation.

Works created before Jan. 1, 1978, but not published by that date are protected for the life of the author plus 70 years or until Dec. 31, 2002, whichever is later. If the work is published on or before Dec. 31, 2002, protection will expire on Dec. 31, 2047, regardless of when the author died.

Works created between Jan. 1, 1923, and Dec. 31, 1977, have protection based on renewal periods/dates rather than the author's death date. Works from this era will require careful research in the Copyright Office's records to find out if a renewal was made during the appropriate window. If this was not done or not done properly, protection expired after the first term, and the work has fallen into the public domain. If, however, renewals were done correctly, the maximum protection period is 95 years.

Similarly, works created January 1, 1964, through December 31, 1977, are protected for 95 years from the date of creation.

Works created in 1922 or before are now public domain. No new material will enter the public domain for another 20 years.

But...maybe it's worth more homework!

 

[Miss Neecerie]

LizzieMaine is the -expert- at these matters...pm her or point out this thread to her..

 

[Pilgrim]

Good idea. Why didn't I thinkadat? :eusa_doh: Done.

I'm glad I posted this. Perhaps the discussion will give me enough information to either act on, or discard, the idea.

 

[LizzieMaine]

Sound recordings are a whole 'nother ball game from other works, unfortunately. Prior to February 1972, there was no federal protection for recordings, but they *were* covered under the various anti-piracy laws of the individual states, which were perpetual and had no provision for expiration. In a nutshell, the cumulative effect of the 1978 Copyright Act and the Bono Act were to prevent the revised 1978 Copyright Act from taking precedence over the state laws until 2067. What that means is that essentially no sound recording will become public domain in the United States until 2067, with the exception of such Government-owned materials as the utterances of the various Presidents, NASA space recordings, and the archives of the Edison Company, which were donated without restriction to the National Archives as a gift to the American people by the Edison estate. All other sound recordings created in the United States until February 15, 1972 are still under copyright protection and unauthorized duplication or distribution of these materials is technically illegal.

There are lots of recording produced by "orphan" companies that have no known surviving owners -- and there's some talk in Congress of finding a way to allow free trade in these materials. But recordings made by Columbia, Victor, Brunswick, OKeh, Decca, or other such companies which can be traced down to present-day owners are definitely illegal to duplicate -- and the present day owners of these materials have been known to be quite aggressive in protecting their interests.

A good summary of current copyright law pertaining to pre-1972 sound recordings can be found at http://www.pdinfo.com/record.htm

 

[Miss_Bella_Hell]

If they've passed into the public domain, you can use them as you wish. You would need to determine when they were copyrighted and do that math based on the standards posted above. If no one owns a copyright anymore, you can do whatever you want with them. However, no one would be under any obligation to pay you for their use once you posted them, since they're in the public domain, unless of course you encrypted them adequately so they'd have to pay.

 

[Samsa]

This is one reason that I hold copyright law in utter contempt, and do my best to circumvent it at all turns.

 

[Mike in Seattle]

The families of the women who wrote "Happy Birthday" are still collecting royalties on it and protect their rights vigorously. It really doesn't matter how old it is if those holding the rights keep renewing and prosecuting.

 

[LizzieMaine]

It's also important to distinguish between the copyright on the song -- which is subject to the pre-1964 28-28 renewal clause -- and the copyright on the sound recording, which is an entirely different kettle of fish. A *song*, as in the written music and lyrics, may very well be in the public domain, but any recording of that song made in the United States, unless it was made by the Edison company, is positively not.

 

[Pilgrim]

Good points in this discussion. I should point out that I believe copyright law is necessary and valuable, but there are problems with it. This situation is an example.

Without copyright law, authors, artists and other creators would receive no value or compensation for their work after the initial performance. That's clearly not fair. And as Lizzie points out, both the the music and the specific performance (the musicians and/or label) have protection.

But there's a problem when there is either no practical way, or no affordable way, to determine who holds those rights. In the case of a disc recording from 50+ years ago, this is often the case. It's not unusual for those who may have inherited rights to be unaware of it - or not interested - or those rights are so limited (one or two recordings 50 years ago) that they're not worth the time to pursue them. Yet in any or all of these cases, there is legal exposure for someone who wants to make the work available...so nothing happens. Even if you want to make a business arrangement with those holding the rights, it may be impractical to find out who they are. This is one reason that so much music from decades ago is no longer available without combing yard sales and Ebay; only the original physical discs can be distributed without fear of legal repercussion.

 

[Twitch]

At this point you're going around in circles answering your own questions. Spent $100 for a sit down with an attorney knowledgeable in the ricording industry and its copywright laws. Don't just talk yourself out of it.

 

[imported_the_librarian]

Donate 'em to a college, let them stash them for you. They might end up online at some point????

Not a real practical answer, but if you can't do anything else......

 

[dhermann1]

Don't colleges and other institutions of that sort kind of not appreciate getting bequests like this without the financial means to archive, preserve, record or whatever? Projects like that can run into money. Giving things to libraries can be a way of getting them buried and unavaiable if the means are not also provided somehow.

 

[happyfilmluvguy]

Even if they are still under copyright, I would still digitize them to at least preserve for a later purpose.