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Protection for Pre-1972 Sound Recordings Protection for Pre-1972 Sound Recordings under State Law and Its Impact on Use by Nonprofit Institutions: A 10-State Analysis from last round: Prepared by National Recording the Program on Information Justice and Intellectual Property Washington CollegePrese of Law,r vAmericanation University Board Under the supervisionOF THE of LIBRARY Peter Jaszi withOF theCONGRESS assistance of Nick Lewis September 2009 revised: Commissioned for and sponsored by the National Recording Preservation Board OF THE LIBRARY OF CONGRESS Council on Library and Information Resources and Library of Congress Washington, D.C. National Recording Registry OF THE LIBRARY OF CONGRESS The National Recording Preservation Board The National Recording Preservation Board was established at the Library of Congress by the National Recording Preservation Act of 2000. Among the provisions of the law are a directive to the Board to study and report on the state of sound recording preservation in the United States. More information about the National Recording Preservation Board can be found at http://www.loc.gov/rr/record/nrpb/. ISBN 978-1-932326-34-5 CLIR Publication No. 146 Copublished by: Council on Library and Information Resources 1752 N Street NW, Suite 800 Washington, DC 20036 Web site at http://www.clir.org and Library of Congress 101 Independence Avenue, SE Washington, DC 20540 Web site at http://www.loc.gov Additional copies are available for $30 each. Orders must be placed through CLIR’s Web site. This publication is also available online at no charge at http://www.clir.org/pubs/abstract/pub146abst.html. The paper in this publication meets the minimum requirements of the American National Standard 8 for Information Sciences—Permanence of Paper for Printed Library Materials ANSI Z39.48-1984. Copyright 2009 by the Council on Library and Information Resources. No part of this publication may be reproduced or transcribed in any form without permission of the publishers. Requests for reproduction or other uses or questions pertaining to permissions should be submitted in writing to the Director of Communications at the Council on Library and Information Resources. Library of Congress Cataloging-in-Publication Data Protection for pre-1972 sound recordings under state law and its impact on use by nonprofit institutions : a 10-state analysis / commissioned for and sponsored by the National Recording Preservation Board, Library of Congress ; prepared by the Program on Information Justice and Intellectual Property, Washington College of Law, American University ; under the supervision of Peter Jaszi with the assistance of Nick Lewis. p. cm. ISBN 978-1-932326-34-5 (alk. paper) 1. Copyright--Sound recordings--United States--States. 2. Fair use (Copyright)--United States--States. 3. Nonprofit organizations-- Law and legislation--United States--States. I. Jaszi, Peter. II. National Recording Preservation Board (U.S.) III. Washington College of Law. Program on Information Justice and Intellectual Property. IV. Title. KF2996.P76 2009 346.7304’82--dc22 2009029362 iii Contents About the Project Leaders . iv Foreword . v Introduction . 1 Part I: Overview of State Sound Recording Laws . 2 A. The History of Protection of Sound Recordings . 2 1. Beginnings . 2 2. The 1909 Copyright Act . 3 3. State Remedies . 4 a. Common Law Copyright . 4 b. Unfair Competition . 5 c. Unauthorized-Distribution Laws . 6 4. Federal Protection: The Sound Recording Amendments of 1971 . 7 5. Upholding the Validity of State Protection: Goldstein v. California . 7 6. Current State Law Remedies for Pre-1972 Sound Recordings . 8 B. Criminal Antipiracy Statutes . 8 1. Commonalities . 9 2. Differences . 10 3. Potential Defenses . 11 C. Civil Statutes . 13 D. Nonstatutory Causes of Action . 15 1. Common Law Copyright . 15 2. The Doctrine of Unfair Competition/Misappropriation . 17 3. Conversion . 19 E. Right of Publicity . 20 1. Statutory Right of Publicity . 20 2. Common Law Right of Publicity . 21 Part II: The States . 23 Alabama . 23 California . 30 Florida . 43 Illinois . 49 Massachusetts . 60 New Jersey . 65 New York . 71 North Carolina . 84 Ohio . 90 Wisconsin . 95 iv About the Project Leaders Peter Jaszi teaches domestic and international copyright law at the Wash- ington College of Law of American University in Washington, D.C. He also directs the Glushko-Samuelson Intellectual Property Law Clinic at American University and helped establish the Program on Information Justice and In- tellectual Property. With Craig Joyce, Marshall Leaffer, and Tyler Ochoa, he coauthors a standard copyright textbook, Copyright Law (Lexis, 7th ed., 2006). With Martha Woodmansee, he edited The Construction of Authorship, pub- lished by Duke University Press. In 1994, Jaszi was a member of the Librarian of Congress’s Advisory Commission on Copyright Registration and Deposit, and in 1995 he was an organizer of the Digital Future Coalition. He is a trust- ee of the Copyright Society of the U.S.A., and a member of the editorial board of its journal. In 2007, he received the American Library Association’s L. Ray Patterson Copyright Award, and in 2009 the Intellectual Property Section of the District of Columbia Bar honored him as the year’s Champion of Intel- lectual Property. Since 2005, he has been working with Patricia Aufderheide of the American University’s Center for Social Media on projects designed to promote the understanding of fair use by documentary filmmakers and other creators. For the academic year 2009–2010, Prof. Jaszi is serving as the Intel- lectual Property Scholar of the Center for Intellectual Property at the Univer- sity of Maryland University College. Nicholas B . Lewis graduated cum laude from Pomona College with a Bachelor of Arts in Politics in 2002 and summa cum laude from American Uni- versity, Washington College of Law, in 2006, where he was a member of the American University Law Review and served as a research assistant to Professor Peter Jaszi. Following a clerkship with the Chief Judge of the District of Co- lumbia Court of Appeals, he joined the Washington, D.C. office of McGuire- Woods LLP. He is currently an associate in the Government Investigations practice group. This report would not have been possible without the outstanding re- search and contributions from many students in the Program on Information Justice and Intellectual Property (PIJIP), Washington College of Law, Ameri- can University. The PIJIP works to advance access to information for teachers, students, artists, programmers, bloggers, inventors, scientists, doctors, pa- tients, and others who depend on it to make essential cultural and economic contributions to society. PIJIP seeks to assure that their voices are heard and interests are recognized. PIJIP accomplishes this through projects they un- dertake dealing with intellectual property issues across the world, by hosting events emphasizing its values in the Washington, D.C. area, and through the advancement of information via news articles, blog entries, and more, posted on its website. More information on PIJIP is available at http://www.wcl. american.edu/pijip/go/about-pijip. v Foreword This is the third of three studies of copyright and sound recordings commis- sioned by the National Recording Preservation Board (NRPB) in support of the congressionally mandated study of the state of audio preservation in the United States. All three studies have focused on how laws pertaining to sound recordings made before 1972 affect preservation of and access to audio recordings. As readers of the previous two studies know, sound recordings made before February 15, 1972, do not benefit from federal copyright protec- tion. In the absence of a national law, in the late 1960s and early 1970s, indi- vidual states passed anti-piracy and other laws to protect producers of sound recordings from unauthorized duplication and sale of recordings. The first two NRPB studies, both written by Professor June M. Besek of Columbia Law School, explored how laws pertaining to rights to pre-1972 sound recordings affect the preservation of and access to these rich resources. Professor Besek’s work examined preservation and access issues as they ap- ply to commercial sound recordings and unpublished works, such as live re- cordings, radio broadcast transcriptions, oral histories, and news interviews. In this study, Professor Peter Jaszi and students in the Program on Infor- mation Justice and Intellectual Property at American University’s Washington College of Law examine criminal and civil laws of 10 states, as well as judicial decisions and common law, pertaining to sound recordings fixed before 1972. The authors provide a brief history of the formulation of these laws and ex- amine the laws and court cases that may determine the extent to which non- profit institutions may preserve and disseminate pre-1972 recordings. As Professor Jaszi and his students note, state anti-piracy laws alone do not define the legal uses of pre-1972 recordings. Legal uses of these record- ings are also affected by common law copyright, unfair-competition laws, rights of privacy, and federal copyright law related to underlying works, such as musical compositions performed on the recordings. Remarkably, this is the first in-depth analysis of individual state copyright laws. Professor Jaszi begins his preface with the statement, “Nonprofit cultural institutions, such as libraries, archives, and museums, hope to make avail- able sound recordings created prior to 1972.” Speakers at hearings conducted for the National
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