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The Ongoing Battle of Copyright Protection and Pre-1972 Sound Recordings
April 23, 2014

Federal Copyright Law generally protects works that are fixed in a tangible medium from unauthorized use, including copying, performance, exhibition, and broadcasting. However, sound recordings from before 1972 are treated uniquely under the law—a situation that has resulted in real legal problems.

When enacted, the Federal Copyright Law preempted any state rights relating to copyright protection. However, because the Copyright Act of 1909 failed to provide protection for sound recordings, and protection for sound recordings was not incorporated into the Federal Copyright Law until 1972, protection for sound recordings prior to 1972 is governed by various state law doctrines.

In particular, the Federal Copyright Law retains several "safe harbors" concerning certain acts relating solely to sound recordings, such as broadcasting pre-1972 sound recordings over the radio. § 114 of the current Copyright Act allows for broadcast transmission of a protected sound recording. However, some copyright holders are attempting to hold broadcasting companies liable for "unauthorized broadcast transmission" of pre-1972 sound recordings under various state misappropriation laws. A class action suit filed in September, 2013 in the Central District of California alleges that SiriusXM refuses to obtain licenses for transmission of pre-1972 recordings in violation of common law and California law, seeking payment for the use of thousands of songs. Two additional class action suits have been filed in the Southern District of New York and the Southern District of Florida, alleging violation of New York and Florida law, respectively. A fourth suit has also been filed in California state court by Capitol Records, Sony Music, UMG Recordings, Warner Music, and ABKCO Music.


Currently, the federal courts are split on whether a state's misappropriation law establishes a cause of action to a copyright holder with a pre-1972 sound recording. The outcome of these cases may help to clarify what protection is afforded to pre-1972 sound recordings, and under what law.

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