Golden Oldies and copyright
p2p news / p2pnet: More than 70% of American music recorded before 1965 isn’t legally available in the US, says University of California Santa Barbara archivist Sam Brylawski.
But, "Some music lovers continue to take matters into their own hands by sharing MP3 downloads of forgotten LPs and 45s across the Internet, and on Web sites devoted exclusively to old music," says an NPR report.
Brylawski, the former head of the recorded sound division at the Library of Congress, took part in a Library of Congress study which reported the 70% finding, and, “The recording industry is a business, and their business is to sell records,” he’s quoted as saying. "And when the esoteric material loses its favor with the public, they have no responsibility to keep those in print. So recordings fall out of print, and they stay out of print."
However, copyrights are another reason for the fact golden oldies aren’t readily available. Sound recordings made after 1972 are "protected" by federal law, says NPR, going on:
"Recordings made before that were covered by state and common law copyright. These laws do not have expiration dates. The Library of Congress study found that 84 percent of recordings from before 1965 cannot be reissued without permission from the copyright holder, which is usually the original record label."
The story also mentions vinylorphanage.com aka the Our Lady of Perpetual Obsolescence Vinyl Rescue Mission and Orphanage site.
On it, pastor Francis McPurvis says:
Our Lady of Perpetual Obsolescence Vinyl Rescue Mission and Orphanage has been helping old, forgotten, and unwanted vinyl records find a home since 1993, says McMillan on the site.
In these days of online music, compact discs, and other wonders of science, one tends to forget that vinyl records ever existed. But not too long ago, vinyl was the pinnacle of modern recording technology. These large, slowly rotating pieces of plastic held music, speech, instructional materials, and yes, even dreams.
But like so many dreams, the reign of vinyl, for the most part, came to an end when the alarm clock of the compact disc rang loud and long. In a twinkling, the long-playing record joined the rotary dial telephone and the milkman in the slow, sad march to becoming a footnote in the encyclopedia of life.
To be sure, some of the more popular examples of the vinyl genre have entered a new stage of life as ‘collectibles’. Sought after and lovingly taken care of by fetishists all over the world, collectible vinyl is enjoying the good life.
But what of those poor, unfortunate individuals who by their very nature are not popular? What of the privately produced and vanity recordings that were never produced in great numbers? What of the musical genres that are given nary a glance today? What of the album covers that are so hideous that it was hoped that they would disappear without a trace?
Often found living in substandard conditions and crammed together without regard to their comfort, health, or dignity, these poor souls spend their days waiting to be rediscovered. Our staff here at the Our Lady of Perpetual Obsolescence Vinyl Rescue Mission diligently conducts rescue sweeps to locate these forgotten ones, bring them to our state of the art Rescue Center, and help them to begin the process of rehabilitation. Through our efforts, these unknown pieces of vinyl find a new life and are able to share their gifts with the world for the first time in many years, some for the first time ever. We invite to you explore our web site and see how these unique pieces of the past may enrich our lives in the present.
Praise be : )
Also See:
NPR – Copyright Laws Severely Limit Availability of Music, January 9, 2006
January 16th, 2006 at 6:08 pm
Awright!!
Mike
January 16th, 2006 at 8:14 pm
“Recordings made before that were covered by state and common law copyright.”
I doubt there is such a thing a a common law copyright, let alone an enforceable one.
My reasoning (for USA only) is:
1. To file a copyright infringement lawsuit it must be done in federal court, with copyright infringement being the making of unauthorized copies of a copyright registered work. If a work is not copyright registered at the Copyright Office, the copyright infringement lawsuit cannot be filed. These are well established federal law principles.
2. Before 1972, when copyright protection was extended to recordings, record companies complained that they had no protection for the recordings and because of that the law was changed, to cover recordings.
3. Most pre 1972 recordings, in my judgement, belonged to record labels that have dissapeared or the licenses for the songs are no longer valid because they were issued to a no longer existing company and the licenses are not transferrable. For example, If record company B acquires all the rights to the records made by record company A, the song owner’s licenses issued to record company A are very likely no longer valid. I doubt very much that record company B could claim ownership rights to a recording without having a song license that is valid for the record company.
I personally have been asked for licenses for old pre 1972 recordings with songs we own. When I have requested proof that the previous record owner was up to date in royalty payments… well that was the end of it. As a result, I believe, of the new owner not having a license, it cannot claim ownership of those recordings. Then if I give a license, it cannot be exclusive, as others may also want to manufacture the same records. I believe a non exclusive producer of a recording cannot sue anyone for copying the recording. In essense, recording ownership cannot be claimed and enforced.
It was only about two years ago that the IP lawyer community was surpised when a NY state court established that there was a never ending “common law” copyright (in NY state) that apparently overides what every lawyer learned about copyright law and overides the very federal copyright law duration period and the very constitutional requirement that copyright duration be for a limited time.
Clearly this “common law” is a very confusing area of the law. Where I live the so call “common law’ copyrights (as opposed to ownership rights) do not exists.
I know, I have not clarified anything very much, but can anyone?
Rafael Venegas
http://www.gvenegas.com
January 16th, 2006 at 8:46 pm
Hold on Hoppy! Now that we are in the digital age anything and everything is being refurbished for digital release and dropped into the ‘Long Tail.” So, in time, there will be next to nothing that will be ‘out of print’ because being ‘in print’ will have a whole new digital meaning. So, let’s not be to quick to kick items currently unavailable into the public domain.
Additionally, most of the songs on the recordings in question are still very much in copyright with most of them being available on other recordings … Songs are copyrighted separately from the recordings … So, ‘Pastor’ Francis McPurvis, of vinylorphanage.com/ has every reason to hide his identity as he does on his site because he is clearly breaking the law by copying the old recordings – and the underlying songs – and making MP3 files available for download without a license.
Even, if for some strange reason, the recordings were made part of the public domain (which can only be done by the amending the copyright law) McPurvis would get is ass busted for illegally distributing the songs.
The ‘Pastor’ can expect a major lawsuit in the near future.
Thanks to NPR for outing this criminal.
January 16th, 2006 at 9:56 pm
“Thanks to NPR for outing this criminal.”?
…right…
January 17th, 2006 at 1:17 am
One thing that would easily solve this problem is to require periodic renewal fees to maintain a copyright, similar to what is required TODAY for patents. This would enable low-demand works to enter the public domain when they became unprofitable (and help discourage perpetual copyrights for 99% of works), while still pleasing the owners of multimillion-dollar properties who are willing to pay to play.
If someone wants to maintain a copyright for the sake of being an artsy control freak instead of being “encouraged in the useful arts” (i.e., by $$$), let ‘em cough it up.
January 17th, 2006 at 5:38 am
Yeah, but… but… that’s…. Logical… It might even contain some… common sense! The cartels couldn’t possibly agree to something of that nature. It violates every principle they believe in!
Though i think it’s a great idea and they should do it now.
January 17th, 2006 at 12:07 pm
“One thing that would easily solve this problem is to require periodic renewal fees to maintain a copyright, similar to what is required TODAY for patents.”
It used to be like that, partly, in the U.S.A. up tp 1978. At the time 28 year copyrights expired, you had to renew the copyright to extend it. But the renewal fee was so small that many works that were out of print or circulation were renewed and thus excluded from the public domain. Then renewals did not apply to recordings which had no copyrightss to begin with.
The purpose of having a renewal copyright period was that for that period the work’s legal ownership would revert to the author (beneficial owner). Music publishers obviated the law by having songwriters give away (for nothing mostly) their renewal rights as a condition for the publisher to manage or exploit the songs. It was a take it or leave proposition, even though it was illegal. It was a trap most songwriters fell in, considering that songwriters were told that song assignment contracts could never be ended unilaterally even when the publisher did nothing with the songs. Even today that is what publishers tell songwriters, after the songwriter signs an assignment contract and never before, of course, that the contracts are eternal and there is no way out when the publisher dose nothing with the songs.
Then in the early 1970’s, the music publisher lobby got Congress to eliminate the copyright renewal period and to greatly expand the copyright duration period, so that the publishers did no have to depend on breaking the law to get renewal rights and copyrights would last for the publisher, not 28 years as was the initial copyright period, but to author’ death plus 70 years, or about 4 times (on average) what it was, all with one stroke of the pen and allegedly to help auothors. Nothing was farther from the truth. It was to help music publishers in their robbery.
An article here describes how renewal rights were exploited illegally and massively by the music publishers:
BIGGEST COPYRIGHT SCAM: RENEWAL RIGHTS APPROPRIATION
http://chocoweb.blogspot.com/
To resume, the idea of periodic renewal fees to maintain a copyright may be a good idea, but if history is a lesson, the idea will likely be abused by the music publishers as they see fit, as thet have always had a bag of trick to do as they wish and the public nd the songwriters have a history of being passive when abused.
BTW, almost all of the Latin American and the American national anthems are still copyright registered and licensed by the performance collectives, even though they are all in the public domain. The Star Spangled Banner alone has over 250 claimants in the ASCAP repertoire (see http://www.ascap.com ). Well, so much for the non existent public domain, made non existent by shady music publishers.
Rafael Venegas
http://www.gvenegas.com
January 17th, 2006 at 11:46 pm
BULLSHIT! I’ve spoken to MANY Progressive Rock bands that were formerly on major labels who outright REFUSE to re-release the band’s albums because they hold ‘No commercial potential” even digitally. So if you have this fantasy of a celestial jukebox on the internet somewhere where EVERY song ever recorded is available for a $.99 download WAKE UP! Also what makes you think the artists on his site DON’T want their stuff available?
January 18th, 2006 at 6:09 am
Consumers are, as we all know, having more and more say in the music that want to hear. That means the ‘long tail’ will become more and more important as time goes on. The ‘long tail’ is an aggregators (as in record companies) market – individual artists won’t do well but those who control thousands upon thousands of tracks will find themselves with a tidy, low cost, business. It only makes sense for the labels to pump as much as they can into the market – especially as search gets more sophisticated; because, the material they have in the can that didn’t make it when it was originally released – because of the limitations on radio and TV time exposure – is undoubtably better than 95% of the armature material that would be its competition, and, therefore, would be more likely to attract audiences.
As for your question, “what makes you think the artists on his site DON’T want their stuff available?” … I’m not talking about ‘artists’, I’m talking about the songs they sing… two very different things and two very different copyrights.
Many of the songs I see on this site are the ‘great standards.’ I personally know many of the owners of those songs. They are not happy when their songs get used without them getting paid. Songs receive the lowest amount in terms of royalties – Because they don’t perform or sell t-shirts or coffee cups… a good number of songwriters depend solely on sale of recordings of their songs to earn a living …
The site in question is not paying royalties … It is quite likely the site’s owner will hear from a lawyer – or lawyers – representing songwriters.
January 18th, 2006 at 6:11 am
Wasn’t it NPR that exposed the site’s illegal activities?
January 18th, 2006 at 3:54 pm
Now, what was that about refusing to re-release out of print product on the Net… Here it comes, pal.
Universal Music Opens Archives For Downloads
http://www.thebusinessonline.com/DJStory.aspx?DJStoryID=20060118DN005920
Universal Music Group International, the world’s largest music company by market share, Wednesday said it was digitizing 100,000 previously deleted European recordings in order to make them available over the Internet. Universal will take recordings from what it claims is the music industry’s largest archive, including music from Marianne Faithfull, Fairport Convention, Nirvana and Jacques Brel.
January 18th, 2006 at 6:39 pm
“Many of the songs I see on this site are the ‘great standards.’ I personally know many of the owners of those songs. They are not happy when their songs get used without them getting paid.”
Sure, BUT those song writers AGREED to have their songs performed when the made the recording (of course depending on the contract) the artist either was paid an outright sum by the record company, or the songwriter gets a cut of the profit from the record company. The songwriter does not own the actual recording so going after such sites won’t hold much water in court. I work in video production. We licensed music from a record label to use in a production. The songwriter got mad because he didn’t get a cut of that money and tried to sue us. The songwriter lost the case because the conflict was between the songwriter and the record company.
“The ‘long tail’ is an aggregators (as in record companies) market – individual artists won’t do well but those who control thousands upon thousands of tracks will find themselves with a tidy, low cost, business. It only makes sense for the labels to pump as much as they can into the market – especially as search gets more sophisticated; because, the material they have in the can that didn’t make it when it was originally released – because of the limitations on radio and TV time exposure – is undoubtably better than 95% of the armature material that would be its competition, and, therefore, would be more likely to attract audiences. ”
So you’re saying the artist is screwed but good thing the record labels can still make money???? Sure “Longtail” (I F*CKING HATE THAT BUZZWORD) will work ONLY if it has commercial potential in the eyes of the label. If record companies are so eager to jump on this LONG TAIL then why don’t they re-issue Wall of Voodoo’s “Dark Continent” or The Tube’s “Young and Rich”? HIGHLY commercial potential bands. they won’t even license those albums when the bands tried to release them THEMSELVES!
I was in the music/entertainment business for 20 years, record companies are run by idiots. They know business models and focus groups and wouldn’t know artistic talent if it bit them in the ass (why do you think people like Ashlee Simpson have a contract in the first place!). These websites are offering a service because the record labels are too stupid to do it themselves (oh we don’t know how to market it so we won’t release it). If the stuff is re-issued on CD, so be it, take the files down! But until then let the music play!
January 18th, 2006 at 10:38 pm
Now, what was that about refusing to re-release out of print product on the Net… Here it comes, pal.
Universal Music Opens Archives For Downloads
http://www.thebusinessonline.com/DJStory.aspx?DJStoryID=20060118DN005920
Okay fine, if the price is reasonable (and no .99 for older music is NOT reasonable) now how much will these files be DRM to death?
Can I transfer it to my ipod, OR my Zen Jukebox or my <insert name here> mp3 player and burn a copy on CD for myself? But like I said before, most record labels are stupid idiots. I hope I’m proven wrong but I won’t hold my breath.
January 19th, 2006 at 1:41 am
You say you were in the record business for 20 years and you make a truly uniformed statement like this:
“Sure, BUT those song writers AGREED to have their songs performed when the made the recording (of course depending on the contract) the artist either was paid an outright sum by the record company, or the songwriter gets a cut of the profit from the record company. The songwriter does not own the actual recording so going after such sites won’t hold much water in court.”
Were you stoned on something for the complete 20 year period, or did you actively ignore how the business works.
The rights to a song are totally separate from the rights to the recording.
For the sake of argument, let’s say the recordings have fallen into the public domain (meaning this site owner doesn’t have to pay for the rights to copy the recordings) … That doesn’t necessarily mean that the underlying songs are in the public domain. In fact, most of the songs I have seen on the site are still in copyright meaning the site owner has no right to make copies without securing licenses and paying royalties.
If the owner of the site has not secured licenses and he is sued by the owners of the songs, he has absolutely no defense and can kiss his bank account goodbye. He is clearly engaging in massive copyright infringement.
If I owned songs on this site, I’d take this site owner to court in a heartbeat.
January 19th, 2006 at 2:12 am
You’re a little mixed up, Rafael.
Under the 1976 US Copyright Act (which went into effect in 1978), there is no way publishers can contractually secure rights from songwriters for any time period beyond the first 35 years. And, there is no way a publisher can prevent the writer from exercising his right to terminate the grant of rights (the contract) he signed.
Most writers, however, limit the rights they grant publishers even further by limiting the term of their grants to even less than 35 years.
Writers, as the original owners of the songs they write, have total control of those rights and can do whatever they want with them from keeping them themselves or granting all or part of them to third parties. It’s up to the writer to understand what he owns… or to hire an attorney to advise him.
As for songs in the public domain … and certainly, The Star Spangled Banner is one of them … what you are seeing at ASCAP proves that the National Anthem is, indeed, in the public domain… meaning anyone can use it. The 250 claims are for the *arrangements* of The Star Spangled Banner. You have the right to claim your *arrangement* and I, and everyone else, have the right to claim our *arrangements.*
Just so you know, ASCAP pays very low rates for PD *arrangements* Record companies usually pay nothing to the arranger for *arrangements* of PD works.
January 19th, 2006 at 6:12 am
Whatever.
Good luck with your lawsuits;-)
January 19th, 2006 at 6:24 am
Yea and they’ll DRM the shit out of it and charge the same it would cost to buy it on CD for an inferior MP3. But wait, it’s not available on CD so we can charge more!