When Does Music Pass Into the Public Domain?
Q. When does music enter the public domain, or more specifically, what is the duration of a copyright?
A. There is no simple answer, especially in a global context. In other countries, the rules vary and may be influenced by several multilateral international copyright treaties, such as the Berne Convention. This article only deals with US copyright law.
There are four common ways that works enter the public domain:
- The copyright has expired.
- The copyright owner failed to follow renewal procedures.
- The copyright owner deliberately places the work in the public domain, or
- Copyright law does not protect the type of work.
In the US, works published before 1923 are in the public domain. For works published after 1923, the rules are complicated and involve numerous conditions, including, but not limited to, publication without a copyright notice, and failure to register or to renew in a timely manner. The most concise and comprehensible summary of the rules can be found at Cornell University’s Copyright Information Center, which provides this helpful chart:
For information on a broad range of copyright questions, go to US Copyright Office “Circulars and Factsheets” found at this link:
Prior to February 15, 1972, there was no federal procedure for registering copyrights for sound recordings. Prior to that date, sound recordings were protected under state common law, which varied from state to state, and in most cases, was aimed at piracy involving counterfeit goods. Works recorded (fixed in a tangible medium) prior to 1972 remain subject to state common law protection and do not enter the public domain until 2067.
There is a distinction between the copyright in a sound recording and a copyright in the underlying work. It is possible for an underlying work, Beethoven’s 5th Symphony, for example, to be in the public domain, while a recording of it made after February 15,1972 will not enter the public domain until 2049 at the earliest, and possibly as late as 2068.
As outlined above regarding music and lyrics, different and complicated rules apply to sound recordings first published in countries other than the US.
Sampling and Mashups
Sampling, using a portion of another artist’s work in your song or production, is risky business. It’s an invitation to litigation if you don’t use properly cleared samples. It cannot be assumed that there is a safe duration or minimum number of notes that can be used before infringement occurs. In Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), the court held that using even as few as three notes from a song constituted infringement.
A mashup is a combination of two or more songs. Often a mashup involves using the lyrics of one song with the music of another. As with sampling, mashups are onquestionable ground when it comes to copyright infringement, even more so because of the amount of content involved.
Artists often mistakenly assume that samples and mashups are covered under the “Fair Use Doctrine.” As with other questions of law, the answer is “it depends.” In the US, courts apply a four-factor test to determine if the use of a work constitutes “fair use.” The law is complex and nuanced, and is applied on a case by case basis. You cannot avoid your day in court and the cost of litigation by simply claiming fair use. It is better to be safe and obtain all of the required clearances before using samples or creating mashups.
Because of the significant legal risks, AudioSparx does not accept music that contains uncleared samples.
To clear samples, it is necessary to do the following:
1. Obtain Master Use Rights from the copyright owner of the recording that you want to sample. This is usually the record label.
2. Get permission from the song publisher(s). This could be a publishing company and/or the songwriter. Be aware that for any number of reasons they can refuse to grant permission.
3. Obtain a mechanical license.
To find publishers:
To obtain mechanical licenses:
The purpose of this article is to provide general information only. Its contents do not constitute legal advice and may not be used or relied upon as a substitute for legal advice. For specific questions and legal guidance, you should always consult a qualified attorney.