OLD TIME RADIO RESEARCHERS POLICY ON COPYRIGHTS (2 of 2)
Steve Dhuey from University of Toledo College of Law wrote in to add the
following thoughts on the topic:
Your page on copyrights seems to address only one type of copyright, federal
statutory copyright. There is indeed good reason to believe that the old time
radio recordings themselves are not under *federal* statutory copyright.
However, there are at least two other major types of copyright: state statutory
copyright, and common law copyright. Neither of those types of copyright are
addressed on that page:
* Under common law copyright, an unpublished work remained under copyright to
its owner/creator in perpetuity.
* State statutory copyright, like federal statutory copyright, usually sets a
limited term on a copyright.
U.S. Copyright Office Circular #56, "Copyright Registration for Sound
"Sound recordings fixed before February 15, 1972, were generally protected by
common law or in some cases by statutes enacted in certain states but were not
protected by federal copyright law. In 1971 Congress amended the copyright code
to provide copyright protection for sound recordings fixed and first published
with the statutory copyright notice on or after February 15, 1972. The 1976
Copyright Act, effective January 1, 1978, provides federal copyright protection
for unpublished and published sound recordings fixed on or after February 15,
1972. Any rights or remedies under state law for sound recordings fixed before
February 15, 1972, are not annulled or limited by the 1976 Copyright Act until
February 15, 2047."
Thus, sound recordings made before Feb. 15, 1972, are not protected by federal
copyright, but they may still be protected by state copyright, or by common law
That addresses the issue of the sound recordings themslves. But there is
another issue: the copyright of the scripts used on old time radio shows. These
scripts were almost all written as works for hire, with the copyrights
belonging to the network or the sponsor. The copyrights of these scripts are
separate from the copyright of the sound recordings; one can be in the public
domain while the other is still under copyright.
Almost all radio scripts would be legally considered unpublished works
(broadcast or performance does not constitute publication), because very few
old time radio broadcasts have been published by the copyright owners. If the
scripts were unpublished, and not registered for copyright as unpublished
works, they were under common law copyright, i.e., in perpetuity. The Copyright
Act of 1976, effective 1978, changed that. It abolished common law copyright in
the U.S. (except for sound recordings) and said that all unpublished,
unregistered works existing as of Jan. 1, 1978, had a federal statutory
copyright, lasting 120 years from the date of creation.
Thus, even though the *recordings* of the old time radio broadcasts are not
under federal statutory copyright, the *scripts* underlying most of those
broadcasts are under federal statutory copyright for 120 years from creation.
There is a third layer of copyright involved, if the script is based on another
literary work, for example, a short story, play, or motion picture screenplay.
Even if the sound recording had no copyright, and the radio script had no
copyright, the copyright of the underlying literary property may be in effect
In summary, the copyright situation is more complex than the simple question of
whether the old time radio recordings are under federal statutory copyright.
There are also issues of common law copyright and state statutory copyright,
and the underlying literary copyrights of the scripts.