Music licensing when I have the only copy but there is no copyright?
November 6, 2014 1:11 PM   Subscribe

I have an unlabeled acetate record from the early 60s that contains music and an interview with a late musician, composer and counter-cultural icon of some note. As far as I've been able to figure, I have the only copy and there is no copyright. There is a documentary about this person in the works and the director/producer is interested in using this material. Someone else, the operator of a long-running fansite, would like to release it as part of a retrospective album next year. I've already offered that it be used in the film for free. Is it possible for me to get compensation for its inclusion on any audio releases?

Talking to a lawyer would be ideal, obviously. But I don't want to spend more on legal fees than I might possibly gain from a small licensing fee on an release of limited sales.

Some facts that might be pertinent:

-The recording was done at the musician's hotel room. Four friends visited him and brought along a tape recorder. Later, one of them added narration and recorded the acetate.
-Three of the visitors are mentioned by first name, but the narrator is nameless.
-The narration is mawkish but competent, done by someone who seems used to public speaking and may have been a public figure.
-I've already sent the filmmaker and fansite guy low-quality excerpts (highly compressed mp3s).
-Once I send the filmmaker my high-quality, full copies, I can expert her to share it with everyone--she knows the fansite guy, the musician's biographer, etc.

What happens in cases like this? Is it even ethical for me to ask for compensation? I didn't create the work, but I may have saved the only copy from oblivion.
posted by hydrophonic to Media & Arts (19 answers total) 1 user marked this as a favorite
I don't see why there is no copyright, and aside from the permissions question I would expect the estate of the late musician to chase you if you made any money from this. I think a lawyer might save you some money.
posted by devnull at 1:22 PM on November 6, 2014

Either the people who want to license it from you will pay you, or they won't. There's really nothing else to consider.

The fact that you've already agreed to license to the filmmaker for free, and said filmmaker is going to have her own copy of the material going forward, make the hand you're playing with pretty weak. Firstly because you've already revealed that you're willing to give away the material for free, and secondly because now the footage is much less rare than it used to be. If the fansite operator doesn't want to pay you, he can go to the filmmaker.
posted by Sara C. at 1:22 PM on November 6, 2014 [1 favorite]

You are absolutely allowed to sell/give a recording to someone. You are not allowed to sell/give a recording to someone and then tell that someone they can reproduce it, without also getting the permission of the artist being recorded. You are triple not allowed telling someone they can reproduce it and asking them for money each time they do.
posted by Jairus at 1:26 PM on November 6, 2014 [1 favorite]

Copyright exists at the moment of creation unless specifically disavowed, or the time limit has run out.

The most ethical choice in this situation is to contact the estate of the musician in question and tell them you have the record; the estate owns the copyright. It would be completely wrong to licence this to other people for money without permission from the estate.
posted by feckless fecal fear mongering at 1:29 PM on November 6, 2014 [9 favorites]

I'm not sure what you mean by "there is no copyright." All works produced created in the U.S. automatically are copyrighted. Registration is not required, nor notice on the recording, etc. See: You need a lawyer to keep you out of trouble here. Possession of the only recording probably does not mean you have the right to license it, let alone give permission to someone else to use it in their movie. IANAL.

On preview, what feckless said.
posted by purple_bird at 1:32 PM on November 6, 2014 [4 favorites]

Here is a primer on copyright law.

You didn't create the work, so you don't own the copyright. I don't know who does, but you don't.

Your statement that "there is no copyright" doesn't seem to be based on anything that I can see in your question.

The filmmaker will have to have the whole deal reviewed by counsel before using your material in the film (and then licensing the film or the recording to others). She presumably has the deepest pocket, so she should take responsibility for the copyright clearance as of now.

There's no reason you can't license the recording for a fee, but surely the deal will be contingent on her getting the rights to use the recording in the film.
posted by JimN2TAW at 1:32 PM on November 6, 2014 [2 favorites]

The musician and/or the creator of the record and/or their heirs own the copyright, not you. Sorry.

This assumes you're in the US.
posted by amtho at 1:33 PM on November 6, 2014

You need to ask a lawyer about this. In general, this would NOT have automatic copyright as several people say above. That did not come into effect in the US until Jan 1, 1978. Automatic copyright does not, in general, apply to things created pre-1978, and if there was no copyright when that law came into effect in 1978, it did not retroactively confer copyright on anything. If it does have copyright, however, the estate of the musician would not likely own the copyright anyway (it would be the person who made the recording). However not knowing who that is would not absolve you of the responsibility to get approval from them.
posted by brainmouse at 1:34 PM on November 6, 2014 [3 favorites]

Response by poster: I'm quite sure the filmmaker and the fansite guy have dealt with the estate; they would be releasing the material, not me.

Maybe "license" is not the term I should be using here. I am aware that I don't have the copyright.
posted by hydrophonic at 1:35 PM on November 6, 2014 [1 favorite]

I guess you could bill them for the time you spend working on this, on a contract basis. Maybe hours spend as an audio engineer -- as long as you weren't charging for the music itself. IANAL at all, but this is one way you might proceed.

However, it might be good for you to look into getting permission and/or purchasing the copyright from his estate, or selling your physical copy to the estate (if he had kids, they would probably really like this).
posted by amtho at 1:43 PM on November 6, 2014 [2 favorites]

Yes, talk to a lawyer -- although others have mentioned that due to age it may not get "automatic copyright", but that only applies to published works -- a single copy made by a person for personal use may not qualify as a published work so you might have up to 120 years before copyright expires. Also, the original musician may not be the only one that copyright belongs to -- if it was recorded by another person, and then that person made a new version with narration, etc., that version has its own set of copyright rules which includes the editor and the narrator potentially.
posted by AzraelBrown at 1:44 PM on November 6, 2014

If I might make a meta-observation: you're simply not going to get the answers you want without talking to a lawyer.

Given the unique nature of this situation, you might be able to find an attorney who will help you for cheap or even free (ie, if you can find an attorney who's a fan of the person on the recording).
posted by doctor tough love at 1:53 PM on November 6, 2014 [2 favorites]

I don't see any problem with asking for a fee, so long as all parties understand that it's compensation for the use of your source material and that others may own copyright in the recording and the musical compositions.

By the way, in the United States there is no federal copyright in sound recordings made before 1972. Such recordings are protected by state laws.
posted by in278s at 1:56 PM on November 6, 2014 [3 favorites]

A similar question was asked and answered previously by someone who had some unique Glenn Gould recordings. The answers were similar.

You should indeed talk to an attorney. If you really want to make money, one possibility that I believe hasn't been mentioned in this thread is that you might be able to sell the movie makers the physical acetate record you have, assuming its not stolen or something. That's different from licensing the contents to them, and it's something you might be able to do. But talk to an attorney about it.
posted by alms at 2:22 PM on November 6, 2014 [2 favorites]

Most answers in this thread don't come from a position of knowledge about the tangled issues involved in a pre-1972 field audio recording.

You do need a specialist lawyer.
posted by spitbull at 2:51 PM on November 6, 2014 [2 favorites]

Best answer: Most answers in this thread don't come from a position of knowledge about the tangled issues involved in a pre-1972 field audio recording.

Yes, I was going to say that copyright issues on sound recordings are a whole complex field unto themselves, particularly pre-1972 recordings. I'm no expert on this by any means, but my understanding is that pre-1972 sound recordings in the U.S. are covered by common law rather than copyright. Thus, a whole different set of rules applies--and even worse, the details vary state by state. Read an interesting article on this topic here. See discussion of sound recording copyright issues near the end of this section of the Wikipedia article.
posted by flug at 4:17 PM on November 6, 2014 [2 favorites]

Response by poster: Thanks for the answers, everyone. flug's linked article disavowed me of this idea I had about 'orphaned' works, and that's what I needed to hear. The article also discusses New York State's strict laws for recordings made before 1972, which applies to this recording.

I emailed the filmmaker that unless she can identify the copyright holder and get permission, I can't give her access to the recording. She might be able to; she's working with biographers and they have a month-by-month timeline of the musician's life. I'll report back if there's any breakthroughs.
posted by hydrophonic at 11:33 AM on November 7, 2014

Thanks for the update. I'm curious why you've decided you can't give her access to the recording. Are you concerned that if she used it then you would be culpable for the copyright violation? I would have thought that she'd be the one who'd be taking that risk. (But no, I'm not an attorney.)
posted by alms at 7:04 PM on November 7, 2014

There shouldn't be anything preventing you from selling the physical copy you already own. Then the matter is truly out of your hands and really not your problem. [I am really really not a lawyer, let alone an IP lawyer]
posted by el io at 12:18 AM on November 9, 2014

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