Can OTR shows be recreated, live? Any legal issues?
March 14, 2010 1:09 PM   Subscribe

I'd like to stage re-enactments of old-time radio shows. Help me understand any possible legal/copyright issues.

So me and a bunch of like-minded lovers of OTR want to recreate certain shows in a live setting. I'm talking about word-for-word reenactments of "Fibber McGee & Molly" and "Suspense" episodes, with live music and a live audience.

Now, the shows themselves are supposedly in the public domain (freely available on archive.org). But does that mean the scripts themselves are in the public domain? Likewise with other OTR projects - Orson Welles' Mercury Theater comes to mind. Can we re-stage those productions with a clear conscience, or are the copyrights that cover the sound recording different in any way from the written material?

Any other angles here that I'm not thinking of? This is a labor of love, nobody is ever going to make a penny off of this, but I sure don't want it to bite anybody on the ass either.
posted by jbickers to Law & Government (11 answers total) 3 users marked this as a favorite
 
@jbickers: i have no advice to give, but just want to say that this is a very very cool idea and i would love to hear how this goes...i see you're in louisville so i could probably even attend :)
posted by DavidandConquer at 1:20 PM on March 14, 2010


Garrison Keillor, Prarie Home Companion, National Public Radio. Ask him, he's made a lifetime of it.
posted by effluvia at 2:08 PM on March 14, 2010


You may want to contact this group in LA to see their experience -- they appear to be doing exactly what you're planning on: Fake Radio - America's Premiere Old Time Radio Comedy Troupe.
posted by scblackman at 2:29 PM on March 14, 2010


Also check out The Generic Radio Workshop, which stages OTR recreations in the Dallas area.
posted by Gridlock Joe at 2:52 PM on March 14, 2010


This page at RadioLovers.com gives a pretty good rundown on the copyright status of the recordings as well as the scripts; somebody there seems to have researched this topic pretty well. Most of it is about the sound recordings, but scripts are discussed in the last 5 paragraphs as follows:

These scripts were almost all written as works for hire, with the copyrights belonging to the network or the sponsor. The copyrights of these scripts are separate from the copyright of the sound recordings; one can be in the public domain while the other is still under copyright.

Almost all radio scripts would be legally considered unpublished works (broadcast or performance does not constitute publication), because very few old time radio broadcasts have been published by the copyright owners. If the scripts were unpublished, and not registered for copyright as unpublished works, they were under common law copyright, i.e., in perpetuity. The Copyright Act of 1976, effective 1978, changed that. It abolished common law copyright in the U.S. (except for sound recordings) and said that all unpublished, unregistered works existing as of Jan. 1, 1978, had a federal statutory copyright, lasting 120 years from the date of creation.

Thus, even though the *recordings* of the old time radio broadcasts are not under federal statutory copyright, the *scripts* underlying most of those broadcasts are under federal statutory copyright for 120 years from creation.

There is a third layer of copyright involved, if the script is based on another literary work, for example, a short story, play, or motion picture screenplay. Even if the sound recording had no copyright, and the radio script had no copyright, the copyright of the underlying literary property may be in effect and enforceable.

In summary, the copyright situation is more complex than the simple question of whether the old time radio recordings are under federal statutory copyright. There are also issues of common law copyright and state statutory copyright, and the underlying literary copyrights of the scripts.



posted by beagle at 3:01 PM on March 14, 2010


perhaps an stupid question, but how is a reenactment of a radio program any different from covering a song?
posted by DavidandConquer at 3:19 PM on March 14, 2010


Now, the shows themselves are supposedly in the public domain (freely available on archive.org). But does that mean the scripts themselves are in the public domain?

This is a really good question. Bearing in mind that IANAL, here's my take on it, with the short answer at the bottom. Executive summary: I think you're OK.

Different jurisdictions have different copyright laws. Copyright law in the USA is, IMHO, more confusing than most. Let's imagine a place where works produced by an individual are copyright for seventy years after his or her death; and works produced by a corporation are copyright for seventy years only. This is similar to most modern copyright regimes.

In 1930 Wilfrette LaMay wrote The Voice Also Rises, a tearjerker about a very brave soldier and his girlfriend. Wilfrette died in 1965, and so her book is still under copyright until 2035. Ivan Yonderheim read Wilfrette's book and wrote a spec script with her permission. Ivan died in 1943 on a secret mission to Nazi Germany. His script will be under copyright until 2013. Before Ivan joined the army the right to produce his script was bought by RCA. RCA recorded a version of the script in 1939 and another two years later. RCA's first version entered the public domain in 2009; the second version will be under copyright until 2011. So you have four "works" that are closely related, but which are distinct for copyright purposes - and the order in which they were produced is totally different from the order in which the copyright expires.

This all ignores the complicating factors of the way different sorts of works (i.e., written as opposed to recorded) have been treated differently for copyright purposes, and the old requirements that copyrights be registered and extended.

All that being said, though, I presume you're not working off an original script - you're making a transcript of a recording. If the recording is out of copyright then my understanding is that you do not breach copyright by creating a derivative work (like a play). So you can transcribe the show and your actors can perform it without any problems.
posted by Joe in Australia at 3:50 PM on March 14, 2010


perhaps an stupid question, but how is a reenactment of a radio program any different from covering a song?

Not a stupid question at all! The difference is that music is generally treated differently by copyright law, and there is a statutory system in most countries that forces the authors to accept a payment in return for letting people cover their song.
posted by Joe in Australia at 3:53 PM on March 14, 2010


Several years ago, I booked the Radio Players West* group to do a live performance at the library for Halloween. IIRC, they did a comedy, a scary story, and some commercials. The audience -- grandparents, grandchildren, and some in-betweens -- loved it. That group might be able to answer your question.


*If it wasn't them, if was a similar group.
posted by bentley at 8:35 PM on March 14, 2010


I just checked their schedule of past performances. It was them.
posted by bentley at 8:39 PM on March 14, 2010


Here's a handy chart of US copyright protection for different types of works, depending on date of creation, corporate vs. individual authorship, life of the author, whether published or not, whether registered or not, etc.

The ironic thing here is that a work made for hire in, say, 1935, but never published or registered, has a 120-year copyright that's good until 2055; while something published without a copyright notice in 1976 has no copyright.

In any case, I would assume the 120-year scenario and act accordingly. The Generic Radio folks say that if you do it for free with a small audience, chances are nobody will bother you about it. But that doesn't make it legal.
posted by beagle at 9:40 AM on March 15, 2010


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