recovery and distribution of outdated media

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  • Just out of curiosity I'm wonder what the take is on a situation like this. I collect old 78 rpm records, cylinder records, and other forms of outdated media. I realize that a performance by someone with a big name (Eddie Cantor, Fannie Brice, etc.) would very likely still be copyrighted by someone, along with the music. However, even popular songs of the day (we're talking 1900 - 1941) are really not that popular any more and no one's going to get rich by digitizing, cleaning up, and re-issuing this material in small quantities; usually only a handful of people who are really interested in this type of material. I've seen several companies with websites, people on e-bay, and several other sources of re-issued recordings from the past, many of which I KNOW are not doing business with the Harry Fox Agency or anyone else for that matter. Is it true that the bottom line with older media like this is money, and if someone's not making a whole lot no one will probably bother them? I can see how if you re-issued a recording of Al Jolson doing "Rock-a-bye Your Baby With A Dixie Melody" some people's feather's would get ruffled, but a re-issue of "Bake Dat Chicken Pie" sold in quantities of 100 or 200 I highly doubt would turn anyone's head. Even the Jolson tune probably wouldn't, but just because he was who he was I'm sure a performer like him would still be on the radar more than someone like Byron Harlan or Billy Murray. Any thoughts?
  • Of course, my opinion is not legal advice but what you are proposing is a violation of copyright if the materials in question were copyright protected to begin with and are not so old that thy have passed into public domain. You cannot asssume because something is old or the person(s) involved were not very well known that it is the case. It is your responsibility to look into the matter not go ahead and hope for the best. With copyright, ignorance is not an excuse and you can be sued.
  • I'd say you need to do a fair use evaluation for each thing that you want to copy. There are examples on the board of fair use evaluations if you search for "fair use." Whether or not something is still exploitable commercially will affect one of the factors (the effect on the market), so that will certainly play a role in the evaluation. Going by whether or not someone will bother is taking a risk, as MKardick points out.

    One thing to keep an eye on is the Orphan Works Act. See where it goes, if anywhere, this session.
  • Thanks for the advice. I have done some extensive research and have worked out licensing for the musical content which for limited edition publications is quite reasonable. What most producers have stated is that practically all original artists are no longer living, and since the original recording companies (including Columbia Graphophone and the Victor Talking Machine Company) are long since defunct and their metal parts and other assets have been bought, sold, and changed hands so many times, it would be virtually impossible for current owners to prove absolute legal ownership of the mechanical pieces proper. ("Master use rights" as it's called.)

    One producer I spoke with stated that he was approached by a corporate owner of something he reissued, and he very fairly (and legally) requested a certified copy of the original signed recording contract between themselves and the artist, proving their ownership of the master recording, and he would gladly remove the work in question from his compilation. The corporate could not provide such a document, and it's basically been a silent standoff since.

    I really wouldn't risk doing such a thing for anything issued from about 1934 onward, as it would be very possible to get sued for more recent material. However, there are other recordings that should be preserved and reissued for future generations to study, and most of the corporates that own material from the pioneer recording companies wouldn't bother releasing such material as it wouldn't be a big money maker for them. Any legal action at that point in my opinion is nothing more than 'bullying', and I certainly stand behind the producer who asked for legal documentation of ownership and was (at least in his case) left alone.

    It's a shame that just because a company owns something, and especially if it's something that they'd just as soon let gather dust and deteriorate because it's not going to make them a fortune, that they will do anything in their power to stop anyone else from providing the material to future generations to study and enjoy. I personally like the idea of different producers (not just the big labels) releasing restorations of such recordings, as different engineers treat the material in different ways and it provides a variety of 'versions' of the material that will, in optical disc format, survive in one way or another to be heard in the future.

    Ok... I'm off my soapbox now... :))
  • I've recently replied to a similar topic on another thread.

    In addition to those comments, I'd like add a few points.

    First, I want to be on record as agreeing with MKardick and COvalle: a risk assessment is not an assessment of legality. Risk is irrelevant to me if I believe that the action is illegal.

    Second, if your primary motivation is preservation, you could make digital copies for yourself and hold on to them (or pass them on to an heir if necessary) until they enter the public domain.

    Third, I agree that it's a shame that companies are sitting on this stuff. This is precisely why material should eventually enter public domain. The fact that such obscure material is currently gathering dust is evidence that that the copyright protection does not need to be extended.

    Finally, you appear to have a rare understanding of the material and the market. I'd suggest that you make your views known to anyone who can affect copyright legislation. Obviously, this includes your Senators and Representative, but I'm sure that our web site provides links to other interested parties. If not, or if you can't find them, I'm sure that we can provide some suggestions.
  • Since I'm not too much of a political activist, I would like some suggestions. I have worked in the media business for 18+ years, and have always had an interest in older media technologies. I guess I'm somewhat of a 'guru' when it comes to cylinder records, 78RPM discs, radio transcriptions, wires, tapes, etc., and their related equipment. I have been published, which was an essay version of a demonstration/lecture I used to do for high schools and colleges on the development and history of sound recording through 1934.

    The sad part of so many reissues and "restorations" being release now is that the people doing these are kids (read: recent college engineering graduates) with little to no understanding of the original technology used to make the recording in the first place. Most transfers of acoustic recordings and radio transcriptions I've heard are simply technologically incorrect and sound awful. This is why I stand for independent labels to issue their material regardless, because for every 5 to 10 bad transfers you hear of a particular recording, one of the indies comes up with a really good one. This preserves a part of our history and heritage from being lost, or at least presented to future generations sounding horrible.

    I too, am sickened by the "Korporate Amerikka" nazistic views taken by the industry, especially those who are basically 'holding hostage' much of our recorded history... just be cause they CAN. Once a performer, creator, writer, composer, whatever dies, let the family enjoy a free ride off their loved (or unloved) one's work for 10 to 15 years, then it should become public domain with *NO* 'renewals' or 'rights buyouts' permitted - I don't care how big your company is. Such a policy, to my knowledge, would cover most artists that I can name prior to my lifetime, and throughout my lifetime to date. Once I've been dead 10 to 15 years, most of these people will have fallen into obscurity and like those artists I was made familiar with by my parents (before my time), will only be issued on "best of" or "down memory lane" type products that will only sell to a limited audience. After that, only collectors, historians, and scholars will be about the only people who would care about their work. Why keep it 'barred from use', which is really the only thing copyright extensions do? Enough is enough.

    I always like to cite the song "Happy Birthday to You". Originally written as "Good Morning to You" in the 1800's, the song is now owned by AOL Time Warner (yay corporate Amerikka!!) and makes them around $2 million a year because of their 'ownership' and bullying, with little or nothing going to the Hill family decendents or their foundation. There is an excellent article at on this pointed example of when enough is enough by way of copyright. This, incidentally, is why a family celebrating a birthday in a restaurant, cannot have the waiters sing the song to their loved one... the restaurant could get sued by AOL Time Warner for "public performance infringement". Makes me want to puke...

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