You should know right away that there aren’t a lot of sound recordings in the public domain. Really. I’m serious. Even if you can download an MP3 for free, that doesn’t mean it’s in the public domain.
Here’s another thing you should know. Even if a song is in the public domain, like an old song like “This Land Is Your Land,” that doesn’t mean a particular recording of it is.
Why? Because the copyright for a sound recording is different from the copyright for the material underneath it (for example, a musical composition or a dramatic script). A sound recording is a performance that is put on a vinyl record, tape, disk, or anything else that can hold sound. There can be more than one recording of the same work, and each recording has its own copyright. The main work, on the other hand, only has one copyright.
If a recording is in the public domain, you can use it without asking for permission (permission from the performers or recording company, that is). But if the work you want to use isn’t in the public domain, you will need permission from the person who owns the rights to it.
Why are there so few sound recordings that are free for anyone to use?
Before February 15, 1972, there was no federal law to protect sound recordings. They were protected by state law, which meant that they would be safe for as long as the law said.
Once Congress gave sound recordings federal copyright protection, they chose February 15, 2047 as the date when those recordings would be free for anyone to use (a term of 75 years). But because of the Sonny Bono Copyright Term Extension Act, this right will last until February 15, 2067. Wow, I can’t wait at all. You?
So, until that magic date in 2067, sound recordings made before 1972 are protected by a number of state laws, some of which are very strict, like laws against piracy and unfair business practices. Trust me. Strict. This one is good. Not only that, 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 (and likely would) make the same decision. (I’m talking about a court case called Capitol v. (But be warned: it’s such a strange choice that reading it might make your head explode.)
Process
A piece of music can be in the public domain in several ways:
If all rights to it have expired, as is the case with old pieces of music like Rhapsody in Blue by George Gershwin, which was written in 1924.
- If the owner of the rights has put it in the public domain, such as through copyright abandonment or the Creative Commons Zero commitment.
- If no rights ever applied to the music, perhaps because the music was made before intellectual property existed, as is the case with most folk music, or because it is not eligible for protection in any other way, as is the case with music played by the US military.
- If a piece of music isn’t in the public domain but is protected by copyright, most countries’ laws say that it can’t be copied, performed in public, sold, or changed without the permission of the person who owns the copyright.
- Some of these things may be legal, but the person who does them without permission would have to pay royalties to the owner of the copyright for using their work.
