How Copyright Made Mid-Century Books Vanish - Page 5

Greg Anos · 08-06-2013, 09:53 AM

Quote:

Originally Posted by gweeks

HarryT and Ralph Sir Edwards: You guys are talking about two different things. Sound recordings sold to the public vs. radio broadcasts. They fall under two different places in the law. I'm not about to argue the details as U.S. copyright law is complex and this isn't an area I've studied.

Greg

<Deep bow>

At least we were being polite!

Greg Anos · 08-06-2013, 10:31 AM

I'm not here to prove a point, once I was made aware of it, I have found it tremedously fascinating.

Here's what i have found on the subject so far (with sources):

Steve Dhuey from University of Toledo College of Law wrote in to add the following thoughts on the topic:

Your page on copyrights seems to address only one type of copyright, federal statutory copyright. There is indeed good reason to believe that the old time radio recordings themselves are not under *federal* statutory copyright.
However, there are at least two other major types of copyright: state statutory copyright, and common law copyright. Neither of those types of copyright are addressed on that page:
* Under common law copyright, an unpublished work remained under copyright to its owner/creator in perpetuity.
* State statutory copyright, like federal statutory copyright, usually sets a limited term on a copyright.
U.S. Copyright Office Circular #56, "Copyright Registration for Sound Recordings," says:
"Sound recordings fixed before February 15, 1972, were generally protected by common law or in some cases by statutes enacted in certain states but were not protected by federal copyright law. In 1971 Congress amended the copyright code to provide copyright protection for sound recordings fixed and first published with the statutory copyright notice on or after February 15, 1972. The 1976 Copyright Act, effective January 1, 1978, provides federal copyright protection for unpublished and published sound recordings fixed on or after February 15, 1972. Any rights or remedies under state law for sound recordings fixed before February 15, 1972, are not annulled or limited by the 1976 Copyright Act until February 15, 2047."

Thus, sound recordings made before Feb. 15, 1972, are not protected by federal copyright, but they may still be protected by state copyright, or by common law copyright.
That addresses the issue of the sound recordings themslves. But there is another issue: the copyright of the scripts used on old time radio shows. These scripts were almost all written as works for hire, with the copyrights belonging to the network or the sponsor. The copyrights of these scripts are separate from the copyright of the sound recordings; one can be in the public domain while the other is still under copyright.
Almost all radio scripts would be legally considered unpublished works (broadcast or performance does not constitute publication), because very few old time radio broadcasts have been published by the copyright owners. If the scripts were unpublished, and not registered for copyright as unpublished works, they were under common law copyright, i.e., in perpetuity. The Copyright Act of 1976, effective 1978, changed that. It abolished common law copyright in the U.S. (except for sound recordings) and said that all unpublished, unregistered works existing as of Jan. 1, 1978, had a federal statutory copyright, lasting 120 years from the date of creation.
Thus, even though the *recordings* of the old time radio broadcasts are not under federal statutory copyright, the *scripts* underlying most of those broadcasts are under federal statutory copyright for 120 years from creation.
There is a third layer of copyright involved, if the script is based on another literary work, for example, a short story, play, or motion picture screenplay. Even if the sound recording had no copyright, and the radio script had no copyright, the copyright of the underlying literary property may be in effect and enforceable.
In summary, the copyright situation is more complex than the simple question of whether the old time radio recordings are under federal statutory copyright. There are also issues of common law copyright and state statutory copyright, and the underlying literary copyrights of the scripts.

By Jesse Saivar, Lawyer.

(Jesse Saivar specializes in intellectual property matters specifically related to the entertainment industry, including copyright, trademark, and domain name/website issues, as well as the negotiation and drafting of entertainment industry contracts.)

We’ve gone through several iterations of our federal copyright laws over the past 100 years or so, which has made determining the copyright status of older works extremely tricky. In your case, you’re hoping that the work is in the “public domain,” meaning it is no longer the subject of copyright protection, so that you can use it without having to obtain permission. To determine its status you’ll have to know when it was created and whether its owner properly complied with the particular guidelines of its era. For guidance with this, see this helpful chartput together by the hard-partying folks at Cornell (apparently they consider themselves more than just a basketball factory).
You should first know that before 1972, sound recordings (which would include a recording of a radio program) were not protected by federal copyright law under any scenario. However, to make things more confusing, they were protected by state laws (which vary). Please also keep in mind that if your radio program was of the “dramatic” type, then you not only have to worry about copyrights in the sound recording, you also have to worry about the copyright status of the underlying scripts for the show, which were protected by federal copyright law prior to 1972. On top of that, many old dramatic radio shows were based on underlying materials like books, comics, or short stories. If that’s the case with yours, you’ll need to determine the status of copyrights in the underlying material as well (because if it’s still protected, you’ll need rights from those owners).

From the Cornell Chart.

Sound Recordings Published in the United States
Date of Fixation/Publication
Conditions
What was in the public domain in the U.S. as of 1 January 20133

Fixed prior to 15 Feb. 1972
None
Subject to state statutory and/or common law protection. Fully enters the public domain on 15 Feb. 2067

15 Feb 1972 to 1978
Published without notice (i.e, , year of publication, and name of copyright owner)15
In the public domain

15 Feb. 1972 to 1978
Published with notice
95 years from publication. 2068 at the earliest

1978 to 1 March 1989
Published without notice, and without subsequent registration
In the public domain

1978 to 1 March 1989
Published with notice
70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation. 2049 at the earliest

After 1 March 1989
None
70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation. 2049 at the earliest

And from other sources (not atributable): Radio Broadcasts were considered "Public Perfomances", and fell under the "public Performance rules of copyright as far as payment to the holders of materials being performed underlying copyrights. (Does that mean that each copy of an old-time radio show have a royalty due to the scrip owners? Who knows?)

I had neven thought about this aspect of copyright laws (plural deliberate). Fascinating...absolutely fascinating...

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08-06-2013, 10:31 AM	#62
Greg Anos Grand Sorcerer Posts: 11,528 Karma: 37057604 Join Date: Jan 2008 Device: Pocketbook	I'm not here to prove a point, once I was made aware of it, I have found it tremedously fascinating. Here's what i have found on the subject so far (with sources): Steve Dhuey from University of Toledo College of Law wrote in to add the following thoughts on the topic: Your page on copyrights seems to address only one type of copyright, federal statutory copyright. There is indeed good reason to believe that the old time radio recordings themselves are not under federal statutory copyright. However, there are at least two other major types of copyright: state statutory copyright, and common law copyright. Neither of those types of copyright are addressed on that page: * Under common law copyright, an unpublished work remained under copyright to its owner/creator in perpetuity. * State statutory copyright, like federal statutory copyright, usually sets a limited term on a copyright. U.S. Copyright Office Circular #56, "Copyright Registration for Sound Recordings," says: "Sound recordings fixed before February 15, 1972, were generally protected by common law or in some cases by statutes enacted in certain states but were not protected by federal copyright law. In 1971 Congress amended the copyright code to provide copyright protection for sound recordings fixed and first published with the statutory copyright notice on or after February 15, 1972. The 1976 Copyright Act, effective January 1, 1978, provides federal copyright protection for unpublished and published sound recordings fixed on or after February 15, 1972. Any rights or remedies under state law for sound recordings fixed before February 15, 1972, are not annulled or limited by the 1976 Copyright Act until February 15, 2047." Thus, sound recordings made before Feb. 15, 1972, are not protected by federal copyright, but they may still be protected by state copyright, or by common law copyright. That addresses the issue of the sound recordings themslves. But there is another issue: the copyright of the scripts used on old time radio shows. These scripts were almost all written as works for hire, with the copyrights belonging to the network or the sponsor. The copyrights of these scripts are separate from the copyright of the sound recordings; one can be in the public domain while the other is still under copyright. Almost all radio scripts would be legally considered unpublished works (broadcast or performance does not constitute publication), because very few old time radio broadcasts have been published by the copyright owners. If the scripts were unpublished, and not registered for copyright as unpublished works, they were under common law copyright, i.e., in perpetuity. The Copyright Act of 1976, effective 1978, changed that. It abolished common law copyright in the U.S. (except for sound recordings) and said that all unpublished, unregistered works existing as of Jan. 1, 1978, had a federal statutory copyright, lasting 120 years from the date of creation. Thus, even though the recordings of the old time radio broadcasts are not under federal statutory copyright, the scripts underlying most of those broadcasts are under federal statutory copyright for 120 years from creation. There is a third layer of copyright involved, if the script is based on another literary work, for example, a short story, play, or motion picture screenplay. Even if the sound recording had no copyright, and the radio script had no copyright, the copyright of the underlying literary property may be in effect and enforceable. In summary, the copyright situation is more complex than the simple question of whether the old time radio recordings are under federal statutory copyright. There are also issues of common law copyright and state statutory copyright, and the underlying literary copyrights of the scripts. By Jesse Saivar, Lawyer. (Jesse Saivar specializes in intellectual property matters specifically related to the entertainment industry, including copyright, trademark, and domain name/website issues, as well as the negotiation and drafting of entertainment industry contracts.) We’ve gone through several iterations of our federal copyright laws over the past 100 years or so, which has made determining the copyright status of older works extremely tricky. In your case, you’re hoping that the work is in the “public domain,” meaning it is no longer the subject of copyright protection, so that you can use it without having to obtain permission. To determine its status you’ll have to know when it was created and whether its owner properly complied with the particular guidelines of its era. For guidance with this, see this helpful chartput together by the hard-partying folks at Cornell (apparently they consider themselves more than just a basketball factory). You should first know that before 1972, sound recordings (which would include a recording of a radio program) were not protected by federal copyright law under any scenario. However, to make things more confusing, they were protected by state laws (which vary). Please also keep in mind that if your radio program was of the “dramatic” type, then you not only have to worry about copyrights in the sound recording, you also have to worry about the copyright status of the underlying scripts for the show, which were protected by federal copyright law prior to 1972. On top of that, many old dramatic radio shows were based on underlying materials like books, comics, or short stories. If that’s the case with yours, you’ll need to determine the status of copyrights in the underlying material as well (because if it’s still protected, you’ll need rights from those owners). From the Cornell Chart. Sound Recordings Published in the United States Date of Fixation/Publication Conditions What was in the public domain in the U.S. as of 1 January 20133 Fixed prior to 15 Feb. 1972 None Subject to state statutory and/or common law protection. Fully enters the public domain on 15 Feb. 2067 15 Feb 1972 to 1978 Published without notice (i.e, , year of publication, and name of copyright owner)15 In the public domain 15 Feb. 1972 to 1978 Published with notice 95 years from publication. 2068 at the earliest 1978 to 1 March 1989 Published without notice, and without subsequent registration In the public domain 1978 to 1 March 1989 Published with notice 70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation. 2049 at the earliest After 1 March 1989 None 70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation. 2049 at the earliest And from other sources (not atributable): Radio Broadcasts were considered "Public Perfomances", and fell under the "public Performance rules of copyright as far as payment to the holders of materials being performed underlying copyrights. (Does that mean that each copy of an old-time radio show have a royalty due to the scrip owners? Who knows?) I had neven thought about this aspect of copyright laws (plural deliberate). Fascinating...absolutely fascinating...

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