Happy Public Domain Day!
Every January 1st the United States adds a new crop of works to its public domain. Though the term of copyright is very long, the Constitution provides that it must—eventually—end. This transition is arguably the most important moment in the life of a creative work, excepting only its initial creation. The end goal of copyright in the first place is to encourage the creation of new works, and the public domain is the shared pool out of which those new works may be freely forged. For a great explainer about the value of the public domain, check out the annual Public Domain Day post by our friends at the Center for the Study of the Public Domain! In this post, we thought we would do something a little different from our normal fare and spend some time talking about sound recordings, which only started entering the public domain in the last few years.
As a general rule, works published prior to 1978 have a maximum copyright term of 95 years. Thus (because copyright terms run through the end of the calendar year) on January 1 all works first published in 1929 will be free to use. Well, almost all works. From a copyright perspective, sound recordings are a bit different in several ways, and one way is they are subject to somewhat longer protection. The discrepancy illustrates the curious space sound recordings occupy in US copyright law.
The history of why sound recordings are treated differently is very interesting. It is also too involved to do it justice in a blog post. For thorough treatments of the subject, check out the fascinating articles by Bruce Epperson and Zvi S. Rosen. Each goes into depth on the legal conflicts that arose as artists, scholars, inventors, and policymakers struggled to understand and form policy around the emergence of two new media—sound recordings and piano rolls—that were unlike anything previously known in history.
In short, federal copyright law has only protected sound recordings since February 15, 1972, which was the effective date of the Sound Recordings Act of 1971. Recordings made since that date have been subject to the same laws as any other copyrightable work from the moment they were fixed. However, the Act was not retroactive, so recordings fixed before that date were excluded from federal protection. The Copyright Act of 1976, which completely revised U.S. copyright law, preserved that dichotomy: recordings fixed after 1972 were included; pre-1972 recordings were not.
Though pre-1972 recordings were not protected by federal law, states were free to protect them. States protected pre-1972 recordings perpetually through their common law (as though they unpublished works, which prior to the 1976 act were also protected by state common law), with most states then codifying that protection in criminal statutes. Though state protection was in theory perpetual, the 1976 Act nonetheless put a time limit on that protection—all state protection for pre-1972 recordings was to be preempted and cease in 2047 (75 years after the Sound Recordings Act). The Copyright Term Extension Act later extended that date by 20 years. Thus, all pre-1972 recordings, regardless of how old they were, would remain under state protection until 2067. Had the situation not changed, by the time any domestic recordings entered the public domain, the oldest recording would have been more than 200 years old!
The cabining of pre-1972 recordings was narrowed in 1994, when the Uruguay Round Agreements Act (URAA) took effect. The URAA amended the Copyright Act to provide retroactive copyright to foreign works that had entered the public domain due to failure to non-compliance with formalities, lack of national eligibility, or because they were pre-1972 recordings. This Act inspired the case of Golan v. Holder, which challenged (and eventually affirmed) Congress’s ability to remove works from the public domain. Among other things, the URAA brought pre-1972 foreign recordings (which were not actually in the public domain) under federal copyright. Meanwhile, domestic pre-1972 recordings remained under the exclusive care of the states, with a true public domain only in the distant future.
One result of leaving protection to the states was variations in treatment among the states. The term of protection is one good example. Most states protected recordings for the maximum term permitted by Congress; however, some states cut off protection earlier. One notable example is Colorado, which protected recordings only for 56 years—significantly shorter than in other states (Colorado was also one of only two states to refer to that protection as “copyright”). There were also differences in the nature of the protection. All but two states (Indiana and Vermont) enacted criminal statutes codifying protection; only one state (California) also codified civil penalties. Some states had exceptions for non-commercial use, or for libraries, or both; some had neither. Only one state (New York) had established a common law fair use doctrine for sound recordings, and none had codified the doctrine in a statute.
This resulted in some strange paradoxes in the law, with often sharp disparities. One such result was that recordings and the underlying musical composition they embodied might have different terms of protection. As one typical example, the sheet music for George M. Cohan’s 1917 song, “Over There,” entered the public domain at the end of 1992; however, Nora Bayes’s recording of the same song from the same year would have been protected in most states until 2067. Another example of disparity resulted from differences in federal and state treatment of public performances. Because no state explicitly provided exclusive rights to public performances, for example, no license was needed to publicly play the sound recording of Marvin Gaye’s 1971 hit, “What’s Going On,” but a license was required to play his recording of “Let’s Get It On,” recorded only two years later (licenses were still required for performance of the underlying musical works).
| Musical Composition | Sound Recording | |
| What’s Going On? (1971) | License required | No license required |
| Let’s Get It On (1973) | License required | License required |
The situation was unnecessarily complicated, and was frustrating to nearly everyone involved. Recording artists and labels disliked the disparity in performance rights between pre- and post-1972 recordings. Public interest groups, such as librarians and archivists, disliked the lack of uniformity and the only sporadic limitations and exceptions. The issue came to a head when Mark Volman and Howard Kaylan (aka Flo & Eddie), of The Turtles, brought a series of lawsuits attempting to establish that a public performance right existed under the common law of the states (though none had codified one). The failure of those lawsuits in part led to Congress’s passing the Music Modernization Act (MMA) of 2018, which, among other things, finally brought all pre-1972 recordings under federal law.
However, the MMA did not simply apply the existing federal copyright law to pre-1972 sound recordings. Instead, Congress opted to create a parallel statute, which looks very similar to the “normal” copyright laws but in fact comprises an independent scheme. The distinction is evident in the term of protection. Unlike other copyrightable works from the era, which are treated uniformly, the length of the term for sound recordings varies depending on the year of first publication. Recordings published between 1923 and 1946 are protected for 100 years, and recordings published between 1947 and 1956 are protected for 110 years from the date of publication. The recordings that are protected the longest—unpublished recordings—are ironically the ones that are the most threatened by extended protection. Those recordings will remain locked until 2067, regardless of their fixation date.
In addition to establishing limited terms and giving pre-1972 recordings some parity with post-1972 recordings as far as the public performance right, the MMA established that most important copyright limitations and exceptions—especially the fair use and first sale doctrines and the library and teaching exceptions—all apply to pre-1972 recordings. It also tried some new things! It established a mechanism for making noncommercial use of a recording that isn’t being commercially exploited—maybe testing the waters of orphan works legislation. It also expanded the Section 108(h) “last 20 years” exception for libraries to apply to all pre-1972 recordings, regardless of publication status.
There were many questions the MMA left open. For example, prior to the MMA, each state had their own definition of who the default owner of a sound recording was. Congress preserved the confusing and sometimes contradictory patchwork, leaving the state definitions in place. As a result, when ownership has not been established by contract—as is often the case, for example, with archival recordings—the ownership will need to be determined by courts. Congress also left in question the relationship between the MMA and pre-1972 foreign recordings, especially as to whether the MMA’s noncommercial use mechanism applies. Since Congress did not create criminal penalties under the MMA, there is also some question as to whether they left in place the state criminal statutes. But Congress did establish, very firmly, that all sound recordings should no longer be protected for at least another half-century.
Which brings us back to the public domain. As of January 1, most works first published in 1929 will be in the public domain in the USA. 1929 was an important year for sound recordings. It was the last year cylinder recordings were produced. It was the year the last recording studio switched from acoustic to electrical recording techniques (though most had switched a few years earlier). Because of the MMA, those recordings will enter the public domain in the near future, but as a result of the strange history of sound recordings copyright, it will not happen this year. Americans will have to wait five more years for the complete works from those eras to finish entering the public domain.
But thanks to the MMA, published recordings from 1924 are entering the public domain, which would otherwise not be! The class of 1924 includes several important recordings, including the very first recordings of George Gershwin’s Rhapsody in Blue, Al Jolson’s “California Here I Come,” and Isham Jones’s “It Had To Be You.” Despite sound recordings trailing other classes of works by a few years, the 2025 Public Domain Day is a good day for sound recordings enthusiasts!