Q: I’d like to use some audio from an old radio show. My research so far reveals the show…like many old radio shows…was never copyrighted. How does one determine the copyright status of something like a radio show?
A: Let’s first talk about where copyright law is today with respect to the need for copyright registrations. Remember those old SAT questions where they asked you to find the two pairs of things that were most alike? Well, under current U.S. copyright law, copyright registrations are to copyright owners as permanently affixed Bluetooth earpieces are to morons. You don’t have to have a copyright registration to be a copyright owner, but if you do have a registration, you’ve put the public on notice that you are, indeed, a copyright owner.
Pursuant to U.S. law after the passage of the 1976 Copyright Act (which was effective beginning in 1978), copyrights are conferred upon an author from the moment of creation of the subject work. Acquiring a copyright registration simply confers certain benefits upon a copyright owner. First, you can only sue someone for copyright infringement if you own a copyright registration (note: if you don’t have a registration when your work is infringed, your first step before suing the infringer is to apply for and obtain a registration). The other benefits are available only to those copyright owners who have effective registrations in place when the infringement occurs. As discussed above, if you have a copyright registration, everyone is put on notice that you are a copyright owner. Therefore, if someone proceeds to infringe upon your rights in spite of this, our benevolent government allows you to sue for certain extra damages (i.e., statutory damages and attorneys’ fees) that you could not have sought if your work was infringed without an effective registration in place.
You’ve said your program is “old.” According to my 14 year old niece, because I was born in 1977, refuse to text message, and think Vampire movies have gone downhill since The Lost Boys (R.I.P. Corey Haim), I’m officially “old.” Therefore, when you say your radio program is “old,” you could be talking about something created after 1978. If that’s the case, then the owner of the radio program still has rights in the show despite the lack of a copyright registration. Therefore, you would need to find the owner to obtain permission to use the show in your film.
Now just like any other important, big time, prestigious, powerful, highfalutin Hollywood type, I refuse to think of myself as “old.” In fact, in the spirit of Los Angeles, I plan on having my current cheeks stapled near the back of my hair-dyed-head well before I submit to being “old.” Thus, I’m going to assume that your “old” radio show pre-dates 1978. If that’s the case, then things get a bit more interesting… that is, of course, if you find debilitating confusion interesting.
We’ve gone through several iterations of our federal copyright laws over the past 100 years or so, which has made determining the copyright status of older works extremely tricky. In your case, you’re hoping that the work is in the “public domain,” meaning it is no longer the subject of copyright protection, so that you can use it without having to obtain permission. To determine its status you’ll have to know when it was created and whether its owner properly complied with the particular guidelines of its era. For guidance with this, see this helpful chartput together by the hard-partying folks at Cornell (apparently they consider themselves more than just a basketball factory).
You should first know that before 1972, sound recordings (which would include a recording of a radio program) were not protected by federal copyright law under any scenario. However, to make things more confusing, they were protected by state laws (which vary). Please also keep in mind that if your radio program was of the “dramatic” type, then you not only have to worry about copyrights in the sound recording, you also have to worry about the copyright status of the underlying scripts for the show, which were protected by federal copyright law prior to 1972. On top of that, many old dramatic radio shows were based on underlying materials like books, comics, or short stories. If that’s the case with yours, you’ll need to determine the status of copyrights in the underlying material as well (because if it’s still protected, you’ll need rights from those owners).
The long and short of it is that I cannot begin to answer your question without more facts. I apologize for being as helpful as your cable company’s customer service representative. The good news is that there are good people who figure these things out for a living at non-lawyer rates. I recommend you call a clearance specialist who can help you determine whether you need permission to use your program and, if you do, whom you need to contact in order to get it.
This blog was originally published as part of Legal Ease, Film Independent’s weekly column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here.