Calculating Copyright Status – Examples

Our PDWorks tool was designed to encourage reuse of public domain materials by automagically calculating the copyright status of a track. If the track is public domain then you are free to reuse as you jolly well like – without asking permission from anyone. If its protected, then you should identify the rights holder and ask permission before you reuse.

Let’s say you want to use, sample or reissue a particular track, whether its Elvis, Elgar or Elmore Judd. Unfortunately, using even a fraction of a copyright-protected track (without the express permission of the rightsholder) leaves you liable for copyright infringement. At the very least, rights holders can restrain distribution of further copies of the infringing work, or they could sue you for damages. So before reusing tracks in your documentary or mixtape, its best to be aware of the copyright status of the different works embodied in your chosen track. Then, if necessary, seek permission to use the works. If however the track is public domain, you are free to use it without formalities. (These first two paragraphs feel more general so should go on an intro page)

This page explains the basis of PDWorks’ calculations.

The law says a track comprises two different copyright works, a song (musical work) and a sound recording. To freely use the work, without permission, you should be clear that the rights in both these works have expired. Its not enough that either the song or the recording alone are unprotected. Repeat: a track is not public domain (i.e. free to use) until the duration of protection for both copyright elements – the recording and the song – has ended.

MH note: what about producer / performer rights? i don’t know much / enough about how these intersect. If no-one else can inform, i’ll go check-up

Calculating the term of protection for sound recordings.

The sound recording element of a track is protected by copyright for 50 years from the end of the year the recording was first published. If your track has been in circulation for less than 50 years, the sound recordings will be protected. If your track was published more than 50 years ago, the sound recording will be public domain.

As noted above, because the underlying authorial composition – the song or musical work – attracts its own, separate copyrights, even if a sound recording is unprotected there may still be protected elements in the track that restrict your use. Repeat: its not enough for the recording to be public domain. To reuse a track without attracting lawyer’s letters, the song and the recording must both be unprotected or public domain.

Calculating the term of protection for musical works

Musical works are protected for the life of the author plus 70 years. In other words, songs enter the public domain (and copyrights expire in the work) 70 years after the composer’s death. If a song’s composer is still alive, then the song is protected. If the composer died less than 70 years ago, then rights in the work persist. In both these scenarios you need permission to reuse. In neither of these scenarios can the track be properly called public domain, even if the rights in the sound recording have expired (see above). If however the composer died more than 70 years ago, the rights will have expired so the work is public domain and – depending on the status of the recording – you may be free to reuse.

Example 1 Protected recording and composition > seek permission before reuse

I am a documentary film-maker and want to use in a film Blur’s track ‘Out of Time’ – which appeared on a 2003 album ‘Think Tank’. Copyright in the sound recording extends for 50 years from the end of the year in which the music was first published, so will not expire until the end of 2053. In addition the song was written by a still-living composer, Damon Albarn, so rights in the music will continue for at least another 70 years. This track is most definitely not public domain. To stay within the law, I should go ask the rights holders’ permission before continuing.

Example 2 – One or other of the song or recording is protected > Seek permission before reuse

I am a documentary film-maker and want to use a version of Round About Midnight recorded by the Miles David Quintet for Prestige Recordings in 1956. Copyright in the sound recording extends for 50 years from the end of the year in which the music was first published, so expired at the end of 2006. However, the musical work was composed by Thelonius Monk, who died in 1982. His rights will then continue until 2052. Although the recording is in the public domain, the composition is protected. I should – to stay within the law – go ask the rights holders before continuing.

Example 3 – Both the song and the recording are unprotected > Free to reuse

I am a documentary film-maker and want to use ‘Blind’ Lemon Jefferson’s 1927 recording of ‘Matchbox Blues’. On the 50-year rule, the recording is well out and copyright and into the public domain. And on the life-plus-70-year rule, given the songwriter died in 1929, the composition is also in the public domain. I am free to use this track as i see fit.