Recordings of speech, musical instruments, bird calls, or any other sounds created before Feb. 15, 1972, are treated very differently from other recorded sounds under U.S. law. Although the technology of sound recordings originated in the mid-nineteenth century, it advanced famously with Edison’s invention of the phonograph. Their numbers swelled across decades of ragtime and jazz, classical music, blues and gospel, country and folk music, oral histories and radio programs. They encompassed best-selling recordings of Benny Goodman, Elvis, and the Beatles. And the last recording in this category was made during the week that “Let’s Stay Together” by Al Green was the Billboard Hot 100 number-one single.

Each of the 50 states is free to apply its own rules to the protection of sound recordings1 made before Feb. 15, 1972 (often called “pre-1972 sound recordings” for convenience), and they may continue to do so for the next 54 years. As a consequence, the scope of protection for pre-1972 sound recordings is inconsistent from state to state, often vague, and sometimes difficult to discern. In contrast, sound recordings made on and after Feb. 15, 1972, are governed by the U.S. Copyright Act, which imposes uniform treatment nationwide. The discrepancy is explained by the fact that Congress never saw fit to bring domestic2 pre-1972 sound recordings within the scope of federal copyright protection. As a result, online radio stations, documentary film makers, archivists and others who copy, publicly perform, excerpt, or adapt them, are exposed to uncertainty and confusion.

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