When determining copyright status of music, it’s important to understand that separate copyrights may exist for musical compositions and sound recordings. Musical compositions have been protected under federal copyright law for some time, having been added to the list of protectable works when the copyright law was revised in 1831.
Sound recordings began to receive federal copyright protection in 1972, with sound recordings defined to include “works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work…” But the federal rights given to sound recordings only applied to new works. Earlier sound recordings (those recordings made before February 15, 1972) were, by contrast, protected under state laws. Those laws varied from state to state. Recently, through the passage of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (Music Modernization Act), U.S. Copyright Law was amended, adding Section 1401, to provide defined periods of protection for these pre-1972 sound recordings.
While the goal of the Music Modernization Act was to create greater parity in the treatment of pre and post-1972 sound recordings, you’ll see below that the term of protection for musical compositions and sound recordings are structured in slightly different ways. The result? It is possible for a sound recording to be protected under federal law, even if the musical composition that is captured in that recording is in the public domain and free of copyright protection. In other words, the separate copyrights in a single piece of music may have different terms of protection.
The charts below summarize terms of protection under federal copyright law for both musical compositions and sound recordings:
|Date of publication||Total term of federal protection|
|Pre-1925*||Currently in the public domain in the U.S.|
|1925* – March 1, 1989||Musical compositions published during this period were subject to various formalities. If these formalities were not met, works would enter the public domain. See note on formalities below. See also Copyright Term and the Public Domain in the United States for more detailed information.|
|March 1, 1989 through 2002||If created after 1977: term is life of the author + 70 years and, for works of corporate authorship, the shorter of 95 years from publication or 120 years from creation.|
|March 1, 1989 through 2002||If created before 1978 and first published between March 1, 1989 and on or before December 31, 2002: term is life of the author + 70 years and, for works of corporate authorship, the shorter of 95 years from publication or 120 years from creation. Copyright shall not expire before December 31, 2047.|
|After December 31, 2002||Life of the author + 70 years. For works of corporate authorship, the shorter of 95 years from publication or 120 years from creation.|
*Musical compositions first registered or published in the United States during this time would receive a maximum term of protection of 95 years from the date of publication. As a result, this date will increase every year moving forward, until reaching works published in 1977.
|Date of publication||Total term of federal protection|
|Pre-1923||Through December 31, 2021|
|1923 – 1946||100 years from publication|
|1947 – 1956||115 years from publication|
|1957 – February 14, 1972||Through February 15, 2067|
|February 15, 1972 – March 1, 1989||Sound recordings published during this period were subject to various formalities. If these formalities were not met, works would enter the public domain. See the note on formalities below. See also Copyright Term and the Public Domain in the United States for more detailed information.|
|After March 1, 1989||Life of the author + 70 years. For works of corporate authorship, the shorter of 95 years from publication or 120 years from creation.|
A note on formalities:
Under earlier versions of the U.S. Copyright Act, certain formalities were required to obtain and maintain federal copyright protection. Failure to meet required formalities would mean the work would enter the public domain in the U.S.
One required formality was the inclusion of a valid copyright notice, affixed to published copies of the work. In general, musical compositions first published in the United States before March 1, 1989 required a copyright notice to be placed on all publicly distributed “visually perceptible” copies of the musical composition (e.g., sheet music). Distribution of a sound recording before January 1, 1978 does not, however, constitute a publication of the musical composition embodied in the recording.
An effective notice required three elements: (1) the copyright symbol, word “Copyright”, or abbreviation “Copr.”; (2) the name of the copyright proprietor; and (3) year of first publication. Notice should appear on the title page or the first page of music. If a musical composition was first published in the United States before January 1, 1978 without a proper notice, the work could automatically enter the public domain on the date of publication.
Musical compositions first published in the United States from January 1, 1978 to March 1, 1989 were also subject to a notice requirement, but works published without notice during this period of time were provided an additional 5-year period to register the work in order to maintain federal copyright protection.
In addition to the inclusion of a copyright notice, musical compositions first published in the United States from 1925 through 1963 are subject to a renewal requirement. Renewal registrations had to be made with the U.S. Copyright Office during the 28th year after the work was first published. Timely renewal provides a term of protection of 95 years from the date of publication.
As mentioned above, federal copyright protection for sound recordings began for works made on or after February 15, 1972. While the Music Modernization Act provides a new form of copyright protection for pre-1972 sounds recordings, it does not provide full federal copyright protection for these works. This means that formalities required for federal copyright protection do not apply to sound recordings fixed before February 15, 1972. Without a copyright notice, dating these older recordings can be challenging. Some resources exist to aid research, including the Discography of American Historical Recordings, the Library of Congress’s Recorded Sound Research Center, the National Jukebox, and the Internet Archive’s Great 78 Project.
For sound recordings first published in the United States on or after February 15, 1972 to March 1, 1989, however, various formalities were required. For publicly distributed copies of a sound recording embodied in a phonorecord (e.g., an album, cassette, or CD), a copyright notice was required, consisting of: (1) the ℗ symbol; (2) year of first publication; and (3) name or abbreviation of copyright owner. The symbol may appear on any surface of the phonorecord, including the jacket or jewel case. Sound recordings first published in the United States without notice from January 1, 1978 to March 1, 1989 were provided an additional 5-year period to register the work in order to maintain federal copyright protection.
Some more things to keep in mind:
- New arrangements. Are you working with a new arrangement of a public domain composition? Later arrangements, editions, or other adaptations may receive their own copyright protection as derivative works. Copyright in a derivative work extends only to the new original content of the derivative work and does not affect the scope of copyright protection in the underlying composition.
- Unpublished works. The charts above cover the term of protection for works first published in the United States. Under the 1909 Copyright Act, it was also possible for musical compositions to be registered with the U.S. Copyright Office as unpublished works. If registered, these works could potentially receive federal copyright protection for a maximum term of 95 years, measured from the date of registration. If the registered unpublished musical composition was later published, copyright term would still be measured from the date of registration. The term for unregistered unpublished musical compositions and unpublished sound recordings differ.
- In general, term of protection for unregistered unpublished musical compositions is life of the author + 70 years, or 120 years from the date of creation for anonymous, pseudonymous, works made for hire, and works where death date of the author is unknown.
- Unpublished sound recordings fixed prior to February 15, 1972 remain protected until February 15, 2067.
- In general, term of protection for unpublished sound recordings fixed after February 15, 1972 is life of the author + 70 years, or 120 years from the date of creation for anonymous, pseudonymous, works made for hire, and works where death date of the author is unknown.
- Important limitations. The rights provided to copyright owners of musical compositions and sound recordings are limited by various exceptions in the law. These exceptions allow for certain uses of music, under certain conditions. Here are some important exceptions that may apply to your use of copyright protected compositions and sound recordings:
- Section 107 – Fair use
- Section 108 – Reproduction by Libraries and Archives
- Section 110 – Exemption of certain performances and displays. Most relevant in the academic setting are 110(1) for face-to-face teaching, 110(2) for distance learning, and 110(4) for noncommercial performances of musical works.
- Section 1401(c) – Certain Noncommercial Uses of Sound Recordings That Are Not Being Commercially Exploited
- Works first published outside of the United States (foreign works). The U.S. Copyright Act provides for the restoration of copyright in certain foreign works. This restoration results in full copyright protection, under certain conditions, and can apply to both musical compositions and sound recordings. Because the Music Modernization Act does not provide full copyright protection to sound recordings, however, it is unclear if all exceptions under the MMA (see above) apply equally to pre-1972 sound recordings.
How does the Public Domain Day Project work with public domain music?
When the Public Domain Day Project began in 2019, we identified and shared musical compositions first registered or published in the United States in 1923. In 2020, we expanded our search to musical compositions first registered or published in the United States in 1924. Moving forward, we will continue to explore works whose term of copyright has recently expired.
In addition to identifying and sharing public domain musical compositions, we have created new arrangements and sound recordings of some of these public domain works. These new creative arrangements and sound recordings receive automatic copyright protection. In keeping with the goal to support future learning and scholarship, however, we have elected to waive copyright in these newly created works and dedicate the works to the public domain through CC0 1.0 Universal.
Please explore the Public Domain Day Project website to learn more about the project and to explore music scores and audio.
17 U.S.C. § 101
The Music Modernization Act does not provide full federal copyright protection for sound recordings. The law instead establishes sui generis rights under federal law for pre-1972 sound recordings.
17 U.S.C. § 303(b)
17 U.S.C. § 405. This section also provides additional exceptions for the omission of a copyright notice.
See the discussion of foreign works under Section 1401(c) in Requirements and Instructions for Completing and Submitting Notices of Noncommercial uses (NNUs), U.S. Copyright Office. Available athttps://www.copyright.gov/music-modernization/pre1972-soundrecordings/NNUfiling-instructions.html.
Typically, music enters the public domain when the copyright on the recording or sheet music expires, around 70 years after the original artist's death. As of January 1, 2022, that will change to any composition before 1926.Are songs before 1922 public domain? ›
Any Song or Musical Work Published in 1927 or Earlier is in the Public Domain in the USA. No Sound Recordings are Presently PD in the USA. Sound Recordings Released in 1922 or Earlier will Enter the Public Domain in the USA on January 1, 2022.What enters public domain in 2023? ›
Unpublished works that were not registered with the Copyright Office before 1978 enter the public domain after a life-plus-70 term. In 2023, unpublished works from authors who died in 1952 will therefore go into the public domain.How do you know if music is in the public domain? ›
If the publication date is before 1928, the song is in the public domain. If you cannot find the song in Wikipedia, you can also try searching the databases at PDInfo.com and CPDL.org. Finally, Google is also a good resource. As long as you can find solid evidence that the song was published before 1928, you are clear.What does it mean for something to become public domain? ›
A work is generally considered to be within the public domain if it is ineligible for copyright protection or its copyright has expired. Public domain works can serve as the foundation for new creative works and can be quoted extensively.