Public domain sound recordings

old phonograph

You should know, right off the bat, that not many sound recordings are in the public domain. Really. I mean it. Just because you can download an MP3 for free does not mean the recording is in the public domain.

Here’s something else you need to know. Even if a song is in the public domain (say it’s an old song like, oh, I don’t know, This Land Is Your Land), it doesn’t mean a particular sound recording of it is.

Why? Because copyright protection for a sound recording is separate from the copyright protection for the underlying material (for example, a musical composition or a dramatic script). A sound recording is the performance that’s recorded on the vinyl record, tape, disk, or whatever. There can be many recordings of a particular work, and each of those sound recordings has its own copyright. The underlying work has just one copyright, though.

If a sound recording is in the public domain, you don’t need permission to use it (permission from the performers or recording company, that is). But you will need permission from the copyright owner of the underlying work if it isn’t in the public domain.

Why are there so few public domain sound recordings?

Note: We’re not talking about royalty free music here, by the way. Royalty free simply means that you don’t have to pay an ongoing license fee (royalty) to use the sound recording — it doesn’t mean you can do whatever you want with it ... unless the license allows you to.

Before February 15, 1972, sound recordings weren’t protected by federal copyright law. They were protected by state law, which means that they were protected indefinitely.

Once Congress extended federal copyright protection to sound recordings, they chose Feb. 15, 2047 as the date those recordings would enter the public domain (a term of 75 years). But thanks to the Sonny Bono Copyright Term Extension Act, that term has been extended to Feb. 15, 2067. Wow, I can hardly wait. You?

So until that magic date in 2067, pre-1972 sound recordings are protected by a panoply of state laws (antipiracy and unfair trade practice laws, for example), some of which are quite strict. Trust me. Strict. Like this one. Not only that, folks, but the New York State Court of Appeals has decided that NY state law even applies to non-US sound recordings that are in the public domain in their own countries. Other states could (probably would) decide similarly. (I’m referring here to a case called Capitol v. Naxos. Although be warned: reading it might cause your head to explode, it’s such a weird decision.)

Will there really be NO public domain sound recordings in the US until 2067?

Well, there won’t be many. As I said above, the vast majority of sound recordings will not enter the US public domain until Feb. 15, 2067. Doesn’t matter whether they were published or not. (Published means distributed to the public.) All sound recordings made before 1972 have the same cutoff date ... and it’s a long way off.

What about sound recordings made on or after Feb. 15, 1972?

Sound recordings published on or after Feb. 15, 1972 and before January 1, 1978 will be protected by copyright for 95 years from publication date. So the earliest date any of these could enter the public domain is January 1, 2068. And unpublished sound recordings? They will continue to be protected by state law.

... and sound recordings made on or after Jan. 1, 1978?

Ditto. Sound recordings made or published on or after January 1, 1978 will be protected by copyright for 95 years from publication date.

Some 1978-1989 sound recordings may in the public domain

Copyright notices were mandatory until March 1, 1989, when the US joined the Berne Convention. If a work was published without a proper copyright notice, it entered the public domain. So ... sound recordings published between Jan. 1, 1978 and March 1, 1989 without a valid copyright notice on them may be in the public domain.

The copyright notice for a sound recording is made up of a capital P in a circle, the year of publication, and the copyright owner’s name. Like so:

copyright symbol for sound recordings

... and it would be on the recording itself, or on the packaging (album cover).

Note: Copyright owners had a chance to correct the “lack of notice” problem. Unfortunately that makes it a bit difficult to figure out whether a sound recording from this period actually is in the public domain.

A note about non-US sound recordings

It’s pretty likely that no foreign sound recordings are in the public domain in the US. That’s right, none.

Until 1996, pre-1972 non-US sound recordings were not protected by federal copyright law in the US, just like US sound recordings. When the Uruguay Round Agreements Act (URAA) of the General Agreement on Tariffs and Trade (GATT) took effect on January 1, 1996, foreign sound recordings that were not in the public domain in their home countries as of that date had their copyright restored. Sound recordings made from 1923 to 1972 will be protected for 95 years from date of first publication.

What if the recording was in the public domain in its home country on Jan. 1, 1996? Well, it won’t get US federal copyright protection ... but it looks like it will be protected under state antipiracy laws. Blame it on that crazy case I mentioned above.

So there you have it. No non-US sound recordings made between 1923 and 1972 are in the public domain in the US. Now you might be wondering ... what if the recording was made before 1923? So glad you asked. There’s no federal protection for pre-1923 works, but (yep, you got it) state laws will most likely protect them, too. I think that’s nuts, but that’s the way things stand right now.

Are there any public domain sound recordings, then?

Yes, public domain sound recordings do, in fact, exist. Sound recordings made by US government employees (as part of their jobs) are in the public domain. (Most of these are spoken word recordings.) You’re not limited to US government works, though.

You can find audiobooks, background sounds, snippets of speeches and, yes, even some music online. (For example, you can get a free audio recording of Charles Darwin’s On the Origin of Species courtesy of the fine volunteers at LibriVox.) How are these sound recordings in the public domain? Generous people have put them there for you to use.

In fact ... I’ve gathered a bunch of links to such public domain sound recordings on the public domain recordings page. Have a look.


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