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MMD > Archives > January 1996 > 1996.01.05 > 05Prev  Next

Review of New Copyright Law
By Matthew Caulfield

Many thanks for the last batch of digests. I tried the FTP today and it didn't work this time either. Please take a look at the

[ Editor's Note: My apologies that the FTP site is not
[ working correctly for you. I'm going to be out of town
[ on business so I'll be at least a week before I can get
[ to this. I recognize that as our visibility continues
[ to increase, this will be more and more of a problem.
[ Has anyone else had any problems ?

attached LONG note and forward it to the list only if you feel that it should be. It may be a dead issue by now or it may--more likely--cover ground well covered before I came on the scene. Drop the whole thing or edit out parts, as you see fit, if that is the case.

[ Some of what is below feels like review, but I'm still
[ uncertain enough about how the rules apply that any review
[ is good. I'm enclosing the text without editing it.
[ I am curious, though. Music seems to come in several
[ forms. There's the original score. There's performances
[ of that score. Both of these may be copyrighted. I've been
[ told that the rules regarding licensing and royalties vary
[ substantially depending on whether its a "score" or a "performance".
[ Is this true ? If so, then is a roll a score or a performance ?
[ Is an EPROM, floppy, FTP'd file, etc containing a tune a score,
[ or a performance ? Does the representation matter (MIDI events,
[ audio samples, etc).
[ What about "proprietary" file formats of various music editing
[ programs. Are we allowed to discuss them here ? Are we allowed
[ to write non-commercial programs that do file conversions ?
[ Can we exchange or sell such programs ? What laws apply ?
[ I realize this is not a forum of lawyers, but I'd like to
[ keep the discussion going in this area

I am still reading and digesting the knowledge you, Robbie, John Grant, and others are sharing out here about roll reading technology. I will have some questions, but I don't even know what they are at the moment. My goal is not to be dependent on Play-Rite for copies of Wurlitzer rolls.

[ My hope is that our hobby (and for some of us commercial) interests
[ in roll archival don't turn out to be a legal mess. I do hope
[ that with the correct caveats we can continue to pursue the
[ technical issues of archival here.

Here comes the attachment:
I come late to this discussion and because I am not yet able to FTP to Jody's site to pick up past digests but must rely on her patience to Email them to me selectively, I have not read your posts on the subject of copyright. However there are a couple of points in Stephen Kent Goodman's note of 95.08.26 that I would like to expand upon. (By the way I have his two Eau Claire ragtime tapes and they are splendid)

The Copyright Act of 1976 extended all copyrights that had not expired as of January 1, 1978 (that being the date the 1976 act took effect, superseding the Copyright Act of 1909)--and one must take into account the fact that during the several years prior to 1976 when Congress was debating the provisions of the act, it kept passing interim legislation the effect of which was to extend the period of protection for works whose copyright was expiring during that interim period, because Congress fully realized that it was on the threshold of changing copyright duration from the then-applicable 28-plus-28 years to a new longer protection period--so that copyright would expire on December 31 of the 75th year from the date of original copyright. That means that, assuming proper renewal of copyright in the 28th year of the original copyright term under the 1909 act (which is a safe thing to assume for any really successful book or musical composition), works written, or music arranged, after January 1, 1921, is PROBABLY still protected today. But it is guaranteed that everything created prior to January 1, 1921, is now in the public domain. And on January 1, 1997, copyright protection for 1921 works will expire, and so on year by year until there are no works left covered by the Copyright Act of 1909 at all. The 1976 act provides quite different copyright provisions from any previously known in the United States, modeling itself after European and international custom. The concept of common law copyright was abolished, copyright vests upon creation and is not related to publication or non-publication (nor for that matter to registration--though registration is a prudent precaution). Nor, since U.S. adherence to the Berne Convention on March 1, 1989, is a copyright notice on copies of a work now required (though again it is prudent and its absence will probably influence a court's decision on awarding damages to a party whose copyright has been infringed). Copyright in a work of personal authorship lasts for the life of the author (or, in the case of multiple authors, the last survivor) plus 50 years. For works of corporate authorship or anonymous works (defined as works whose author has not been revealed to the Copyright Office) the term of copyright is 75 years from date of publication or 100 years from date of creation, whichever expires first.

Here comes the part germane to this list: the 1976 act was the first act to extend copyright protection to sound recordings (which includes music rolls). Prior to 1972, the only protection for sound recordings was under common law or under individual State law. On February 15, 1972, the first Federal anti-piracy legislation took effect, but that is not copyright protection, and it covers only sound recordings fixed since February 15, 1972. The Copyright Act of 1976, which does offer copyright to any sound recording made January 1, 1978 or later, specifically provides that sound recordings fixed before February 15, 1972--which is most of what interests us--will continue to be covered only by applicable common law and State statutes until February 15, 2047. That means that the question of rights and protection of old music rolls is a very unclear one, especially in view of the difficulty of tracing the devolvement of ownership rights for companies that are defunct or that have merged many times over. It also means that none of us will live to see the day when old music rolls will be unequivocally and indisputably in the public domain.

Play-Rite, for example, puts a copyright notice on rolls made since 1978 and had been using a warning stamp referring to the 1972 anti-piracy act on rolls made before that date. But I question its right to claim ownership in sound recordings that are merely copies of very old rolls, as most of its band organ rolls and other rolls are. John Malone told me that he has a letter from Farny Wurlitzer giving him rights to Wurlitzer rolls. That conflicts with the story that Farny told Dave Bowers that anybody was free to copy his stuff at will--not to mention the cloud cast on the transmission of legal rights by this series of sales: Wurlitzer sold its roll department to Allan Herschell Company, which sold to Ralph Tussing, whose estate sold to Doyle Lane, who sold to John Malone and his partners. What a legal mess that would be to sort out in courtÿ Mr. Goodman incidentally mentions Wurlitzer as if it were still a live firm. It has died, a lean and meager ghost of its former self, in Texas, of all places, going bankrupt there. Steinway bought the name, but nothing else, I think. In like fashion Don Rand did buy the rights to the Clark name, if I remember correctly what he told me. And likewise, although the BAB Organ Company physical equipment went to Senator Bovey and Ozzie Wurdeman, the right to the name was purchased from Dominick Brugnolotti (who was the last B in the BAB name) by Gavin McDonough, who conducts his band organ business under that name.

A more complete but understandable account of copyright law as it pertains to music can be had from the New Grove Dictionary of American Music, under the rubric "Copyright." If any list recipient wants copies of any of the Copyright Office's brochures on any aspect of copyright, I can get them for you, since the Copyright Office is one floor below my office.

(Message sent Fri 5 Jan 1996, 22:51:17 GMT, from time zone GMT-0500.)

Key Words in Subject:  Copyright, Law, New, Review

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