Robert E. Suggs
David Post on the Volokh Conspiracy blogged Wednesday about the recently discovered Savory recordings reported in Sunday’s NYT and how our dysfunctional copyright laws likely will prevent this treasure trove of late 1930s performances by Jazz greats from being available for public consumption. He wrote in general terms about the uncertainty of copyright ownership, given that “the potential copyright liability that could attach to redistribution of these recordings is so large — and, more importantly, so uncertain — that there may never be a public distribution of the recordings.” Exploring the tangles of possible ownership reveals that the problem of uncertain ownership identified by Post probably cannot be overestimated.
Ownership in the Savory recordings (the right to reproduce and distribute them; not the personal property of the physical discs) was created (if at all) when the (unauthorized) fixation occurred, which was during application of the 1909 Act. At that time the recordings would have been outside of federal copyright protection, which required publication with notice, and did not apply to sound recordings until 1972. These recordings of great performances, if protected at all, would have been protected in perpetuity under state law. {Note that 301(c) provides that “[n]otwithstanding the provisions of section 303 [Duration of Copyright: Works Created but not Published or Copyrighted Before January 1, 1978], no sound recording fixed before February 15, 1972, shall be subject to copyright under this title before, on, or after February 15, 2067.”}
The 1976 Act abolished state common law copyright and (under section 303) applied the same copyright term to preexisting unpublished works, life plus 70 years, unless they were published prior to 2003 in which case the term extends to 2047. These recordings were not published before 2003, so (assuming no further term extensions) 70 years after the last bandleader/radio broadcaster/performer/potential copyright claimant dies, one might hope that this stuff then would be in the public domain. In the meantime ownership would be determined under the law of the state of (take your pick) 1) broadcast; 2) reception and fixation; 3) performance (if different from broadcast); or 4) that state specified by a contractual choice of law provision conceivably arising from agreements between performers and bandleaders or bandleaders and broadcasters. Since all this happened 70-80 years ago, we also would need to know the domicile at death of each potential claimant (who is a natural person) to be able to identify the successors of each and whether any interests passed under a will. We will merely pray that there were no assignments or conveyances during anyone’s lifetime. Successors to incorporated broadcasters and orchestras would also not be easy to identify. State common law copyright, although often referred to, is virtually nonexistent, and, as far as I am aware, only New York and California have more than a case or two. One might hope that the above analysis applies, because then 70 years after the last putative author of each recording dies, that particular recording would enter the public domain. We should be so lucky.
The above analysis probably does not even apply, because it assumes that the Savory recordings are a “work” and a work is impliedly fixed under the authority of the author, and it appears that these were not. Even the preemption (sec. 301) of common law copyright probably does not reach works fixed without the author’s authority, since it is doubtful whether rights in an unfixed performance are sufficiently “equivalent” to be preempted. Section 102 specifies the subject matter of copyright as “original works of authorship fixed in any tangible medium of expression.” Section 101 defines “fixed” as “embodiment in a copy or phonorecord, by or under the authority of the author... .” Once again, since these recordings were fixed without their authors’ consents, they are almost certainly outside the subject matter of federal copyright. But even if preemption were to apply, Section301(c) provides that “[w]ith respect to sound recordings fixed prior to 2/15/72, any rights or remedies under the common law or statutes of any State shall not by annulled or limited by this title until 2/15/2067” 20 years beyond 2047, and probably more than 70 years after the death of any putative authors.
But wait! It gets worse! The anti-bootlegging provisions (sec. 1101 “Unauthorized Fixation and Trafficking in Sound Recordings and Music Videos”) apply to an unauthorized fixation of a live musical performance and their prohibitions never expire and also seem to be retroactive without any time limitation. These provisions treat violations as if they were copyright infringements, although of course, without authorized fixation no federal copyright property interest exists. These provisions also explicitly do not preempt state or common law. They apply to acts occurring after the enactment of the Uruguay Round Agreements Act (1994). While the recordings were fixed decades before this effective date, the desired reproductions and sales would occur afterwards, and the language is broad enough to sweep preexisting recordings within the scope of its prohibitions.
Bottom line, state rights in performances fixed without authority probably survive preemption and subsist in perpetuity, controlled by a severely undeveloped/nonexistent state common law. So under state law and/or, under the federal anti-bootlegging provisions, the successors of all possible claimants can enjoin reproduction and distribution indefinitely until each one receives whatever idiosyncratic sum he or she wants. Expecting these recordings to enter the public domain in only a few more decades appears to be a naively optimistic.
There is still one small ray of hope. A musician in the late 1940s (Dean Benedetti) followed the seminal Charlie Parker from club to club and taped his performances on the exceedingly primitive portable equipment of that era. I remember hearing rumors of these tapes in the 1960s, and then they surfaced in the 1980s and were subsequently digitized and distributed by Mosaic Records. The Wikipedia entry is here. These tapes covered far fewer performances and personnel than the Savory recordings, which number nearly 1000. Benedetti was also solely interested in the solos of Charlie Parker, so he ignored other soloists and even ensemble passages, so the factual issues determining ownership were undoubtedly much simpler. In addition, the reproduction and distribution, at least initially, took place prior to the effective date of the federal anti-bootlegging provisions. I wonder whether Mosaic considered and developed the legal issues or just went ahead and did it.
What we need is some kind of Congressionally authorized eminent domain, so the cultural treasures represented by the Savory recordings can become available to the public. Modest compensation for claimants could easily be funded by a small portion of sales revenues. In the longer term, if we are to maintain access to our own culture, we need to curtail the ever increasing term of copyright and its wildly expanding scope.
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