As Our Heritage Crumbles into Dust: The Threat of State Law Protection for Pre-1972 Sound Recordings

This article examines the perplexing question of why U.S. copyright law allows states to grant virtually unlimited protection to sound recordings created prior to 1972. Although the Constitution grants the federal government commanding authority over the United States’ copyright regime, it appears that states are still free to do as they please in at least one important field. In the 2005 decision of Capitol Records, Inc. v. Naxos of America, Inc., the New York Court of Appeals breathed new life into the doctrine of common law copyright by holding that the rights-holder to a sound recording created any time before the effective date of the Sound Recording Amendment (February 15, 1972) may exercise exclusive rights over the work under common law copyright. Prior to that date, federal copyright law protected musical compositions, but not sound recordings. Because sound recordings were not then copyrightable subject matter under federal law, states were not barred from granting protection to such works, whether by common law or statute. At issue in Naxos were a number of sound recordings created in the 1930s in the United Kingdom—a jurisdiction which did provide statutory protection for sound recordings. Relying upon a few early cases, the Court of Appeals concluded that irrespective of the expiration of the UK copyrights, New York protects the sound recordings until federal law preempts the field in 2067. This seemingly innocuous holding may have serious consequences in destroying an important piece of our cultural heritage. A handful of large record companies own the rights to the vast majority of early sound recordings, creating a veritable oligopoly with regard to the recorded sounds of the first half of the twentieth century. Resultantly, only the most commercially viable recordings are restored and remastered, while the vast majority of early works are left to literally crumble to dust. Had these sound recordings been afforded the same copyright term as other creative works of their age, they would have be released into the public domain a maximum of 56 years after publication. However, because common law protection persists, would-be restorers of these early works are barred from taking any action. This article examines the legal bases for the Naxos decision and concludes that they are all flawed, both legally and from a policy standpoint. First, the legislative history of the current Copyright Act strongly suggests that the loophole for allowing state law protection of pre-1972 sound recordings was created by a simple misunderstanding. Furthermore, in reaching its holding Naxos improperly relied upon a few early cases dealing with common law copyright. As a matter of policy, not only does Naxos’ expansive view of common law copyright not advance the purposes of copyright to advance the useful arts and sciences, it threatens the overall copyright protection scheme and the general public’s interest in preserving its cultural history. Because of this, Congress should act swiftly to preempt state law protection for pre-1972 sound recordings by granting them the uniform federal protection enjoyed by other types of intellectual property