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Copywrong Part 2: Keeping Old Music out of the Public Domain

May 19, 2010

Any fan of Led Zeppelin, Eric Clapton, and/or rock music in general has GOT to check out Robert Johnson. Johnson was the king of the Delta Blues, and original writer of many famous rock classics such as Crossroads, and Traveling Riverside Blues, just to name a few.

Robert Johnson died in 1938, so I was excited to go and download his music. I figured it must be in the public domain, according to the law from the time (it seems that the copyright was not renewed), common sense, and this helpful chart.

What a fool I am, of course this music is not in the public domain. This is copyright law after all. Based on lobbying from copyright holders, in 1997 Congress managed to twist copyright law to extend copyright protection to pre-1978 musical recordings potentially for another 70 years, under 17 U.S.C. §303. Interestingly, Robert Johnson’s music was the issue of a case directly on this issue in ABKCO Inc. V. LaVere. The case analyzes §303 and highlights what a mess copyright law has become.

§303 states that music recordings before 1978 are “unpublished” according to the 1909 Copyright Act. This definition is supported as allegedly being in accord with the common practice of the music industry. Being “published” was a requirement for coverage under the 1909 Act. Thus, by deeming old musical recordings “unpublished,” the current Copyright law allows that, as of 1976, the works get another 70 years tacked onto their term. By employing this monopoly-extending wordplay, the rights-holder’s get a windfall via extended royalty revenues, while the public is deprived of access to music.

§ 303 of the Copyright act flies in the face of Constitutional copyright objectives. The Constitution provides exclusive rights for a limited time because of the obvious innovation that results from artists, musicians, and inventors building off each other’s works. §303 ignores this Constitutional mandate. It is an unequivocal accommodation to the music industry, and in no way promotes Constitutional policy. Tell me how such extension promotes the progress of science and the useful arts? You cannot.

Patent law provides a good analogy to the type of loophole that §303 creates. Patent law is vigilant to prevent inventors from selling their works and then later getting a patent. 35 U.S.C. §102(b)’s “on-sale bar,” excludes from patentability any invention that is on sale for over one year.

The same cannot be said of copyright law. By 17 U.S.C. §303 delaying “publication” of musical works, Record labels can have distributed copies of works to millions of people while maintaining that their work is “unpublished.” Then, their work becomes copyrighted at the time of distribution after 1978, and is treated as a new work at that time. This is no joke, Congress has actually created this outrageous loophole on purpose.

Finally, §303 provides pre-1978 artists substantially more copyright protection than contemporary post-1978 artists. Therefore, the argument could be made that the statute is both under-inclusive and over-inclusive. For detail on this argument, along with more background on the issue please see Benjamin Gemperle’s interesting article CAN’T GET NO SATISFACTION: HOW ABKCO V. LAVERE BOWED TO PRESSURE FROM THE MUSIC INDUSTRY.

I am starting to wonder if I will ever see a copyrighted work enter the public domain in my lifetime. The way things are going it does not look good.

As for the music of Robert Johnson, those who are interested and aware of the current internet landscape will be able to find his brilliant works. Thankfully, the internet has managed to provide balance to the bloated copyright regime, but that is a post for another day.

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14 Comments leave one →
  1. May 20, 2010 5:09 pm

    “I am starting to wonder if I will ever see a copyrighted work enter the public domain in my lifetime. The way things are going it does not look good.”

    Copyright law is almost all “wrong” now. It’s up the to the people to take it back, but until everyone is being sued by the RIAA then not enough people will bother to act. The only hope is that once our generation gets into power we take things back from the old people left in congress and set things straight.

  2. Dave permalink
    May 20, 2010 7:58 pm

    In response to the above comment and the post itself, the public domain will grow again in 2018 – 95 years is the length of protection for pre-1978 works. The last time the public domain grew was at the beginning of 1997, when the works from 1922 lapsed – 75 years being the length of copyright at that time. I think most of us will live to that time….

    Also, Robert Johnson’s works are only partially protected by copyright. He has protection for his musical compositions, because compositions were protected by the 1909 Act. However, sound recordings, which are what we download when on P2P services, were not protected by the 1909 Act, at least not expressly. Sound recordings were not expressly provided protection until 1972. Thus the question that precipitated when the Grey Album came out: Could the Beatles’ record company sue based on pre-1971 sound recordings? Unfortunately, that question was not answered and most people would say that the risk of downloading outweighs the payoff of having the music for free.

    • May 21, 2010 11:22 am


      Thanks for the comment. I like your optimism, but I would be genuinely surprised if big media companies allow their old works to enter the public domain in 2018. The way I see it, the 1922 works only went into the public domain because Congress did not act in time. The copyright holders will certainly put up a fight, the question is if Congress will cave in again. Their track record indicates that they will.

      As for Johnson and the question of copyright on the pre-71 recordings, ABKCO v. LaVere (See link above) answers the question. Copyright exists, and the owner can bring suit. The link was broken but I have fixed it.

      My point is that it is nonsensical to retroactively give protection to sound recordings. They were not made with the expectation of copyright, and it is unfair to suddenly extend protection. It is practically impossible to figure out copyright protections because loopholes and exceptions keep being created to allow copyright holders to make more money and limit the creativity of others. This flies in the face of the policy behind copyright law, and intellectual property law in general.

  3. May 21, 2010 3:12 pm

    ” the public domain will grow again in 2018″

    OH MY, really? We can expect our public domain to grow every 20 years? WOW! I’m EXCITE!!!!

    Remember dude, it’ll grow only if Mickey isn’t slated to die.

  4. Dave permalink
    May 23, 2010 6:14 pm

    ABKCO dealt with phonorecords, which are material objects. One does not download a material object from a P2P program, but downloads “sound recordings” instead. Thus, ABKCO did not answer the question other than by analogy….

  5. May 23, 2010 7:36 pm

    True, ABKCO does deal with phonorecords, good catch. However, the case notes that because 303 is retroactive, Johnson’s songs are still copyrighted:

    “If, on the other hand, S 303(b) applies, the Johnson songs would not have been published until the 1990 Columbia release was copyrighted. The 28-year period for copyright protection would not have been triggered until then; Johnson’s copyrights would not have run out in 1967-68; and neither Love in Vain nor Stop Breakin’ Down would be in the public domain.”

    The case may only answer the question by analogy, but the analogy is very strong. I think the phonorecord distinction is weak. It is like saying that there is a difference between a physical and electronic book. Technically true, but copyright law does not really distinguish. If the physical book is copyrighted, so is the e-book.

    That said, I’ll have your back if you want to argue it in court, I just don’t want to be a party. 😉

  6. May 24, 2010 12:17 pm

    How did the Rolling Stones (hugely influenced by Robert Johnson) ever listen to his music when it wasn’t in the public domain!

    Wow, David, here’s another thing you might try. Buy some of it.

    • May 24, 2010 5:54 pm

      Thanks for the comment. My point is not that people shouldn’t buy music, but that copyright terms should not be continually extended. Doing so is contrary to Constitutional policy.

      I gather that from your background you might not be enthusiastic about works entering the public domain. You might also disagree with my post regarding counterfeiting overseas. Fair enough, I think there is a lot of room for disagreement on these issues.

      I enjoyed looking at your blog. I will link to you in my blogroll and visit often.

  7. May 24, 2010 10:19 pm

    “Wow, David, here’s another thing you might try. Buy some of it.”

    There’s one other thing you might try doing. Don’t buy some of it.

    Also Nils, in the english language we put a “?” at the end of questions. You should try it sometime.

  8. May 24, 2010 11:13 pm

    Actually, you and I agree on the length of Copyright term David – it is too long and it should not be extended any further, that’s for sure.

    Not sure how to respond to the other comment. I think it speaks for itself.

  9. HomelessOnWheels permalink
    December 8, 2010 9:57 pm

    What I especially don’t understand is a record label (or publisher, or whomever) claiming copyright on something, thereby not permitting it to be freely distributed, but never releasing it themselves, either. One would think they’d want to make some money trying to sell some of these older, more obscure works, but they’d rather lock them away for nobody to enjoy. Copyright law should include a component that prevents this sort of behavior. Perhaps a strictly enforced provision that stipulates that if a work is not distributed, then it reverts to the public domain, with no recourse for the former copyright holder. Art in all forms is meant to be enjoyed and appreciated; not locked away and withheld from the masses.

    • December 9, 2010 2:27 pm

      Thanks for the comment Homeless,

      While I agree that art is meant to be enjoyed and appreciated. I like where you are going with the idea of a distribution requirement, but I think it would be tricky to enforce, and may lead to some unintended consequences.

      Copyright gives authors the exclusive right to control their works, much like patents. As with patent law, one of the rights is to use and distribute their copyrighted works how they please – and rightfully so. Much like a patent holder should not be required to practice their invention, neither should copyright owners be required to distribute their works.

      An example of the value of not distributing could be to generate a vigorous secondary market. Like old records for example. The author would benefit by the buzz created, and could later timely re-release the works to great fanfare.

      Thanks again for the comment!
      David C.


  1. Copywrong Part 3: Resurrection of Copyright to Works in the Public Domain « 1.8.8. The IP Policy Blog

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