Yesterday I asked the flippant question “hey, why not just make a video and upload it?”. Well, for instance because I have no right to do so 🙂
I wrongly believed that the copyright for those pre-1955 Jazz recordings that I had bought with “The Ultimate Jazz Archive” (or the more recent purchase of those 500 Jazz CDs) had already expired, but that is not so. It may have expired in some countries, but it certainly has not in the US. It took about one hour until the audio track for my “video” was claimed by WMG, and idiot that I am, I even filed a dispute through YouTube’s form.
In the meantime I did some research, and although I hardly know what I’m talking about (so take this with more than a grain of salt), it seems that contrary to my believe, neither the date 1955 nor any number of years play a role here. In the US there is a national law regulating copyright for sound recordings made after 1972, and seemingly everything before is under various (and different!) state laws, and it is so until 2067. “Legal Impediments to Preservation of and Access to the Audio Heritage of the United States” by the US Music Library Association explains it in gruesome detail. They also have an out-of-date but nevertheless informative FAQ about copyright, but as they warn us,
copyright laws are both complex and subtle, and the penalties for mistakes can be severe
and there seems to be no simple, clear and reliable explanation of the situation in the US.
I’m not up to date with what the situation is in Europe. Seemingly we had a copyright expiration after 50 years, and as this would put early Rolling Stones and Beatles recordings into the public domain, the recording industry urges the European Commission to extend copyright to 95 years. I don’t know yet what the current status is (does anybody know?), but it could be that the struggle is still going on. Maybe the people simply lost though.
On the other hand, in our age of the Internet, even the legal situation in the whole of the European Union may be essentially irrelevant. In the case “Capitol Records, Inc. v Naxos of America, Inc.” it was common law of New York that trumped over British copyright law. Of course Naxos was only prohibited of selling the CDs in question in the United States, but it is easy to see an argumentation that YouTube is owned by Google, Google is under the jurisdiction of the US, and therefore common law of New York is applicable to musical content uploaded to YouTube.
Now the question is, what does it mean that Google negotiates with the recording industry? If WMG claims copyright to the song that I uploaded (and contrary to my stupid ideas of yesterday I fully believe them), how do Google’s contracts with WMG change the legal situation? Was it legal for me to upload the song (“Google already paid for it”), or was it infringement anyway? And what is my legal situation? Can they go after me? They most probably wouldn’t, but if they wanted to, could they? What exactly is the nature of the protection that comes from Google’s contracts with the recording industry? Do they protect only Google or does the protection include the uploader?
Wherever you look, everybody who explains the sitaution (even Google themselves in their help pages on YouTube), makes all too sure that nothing is legally binding in any way. As you can imagine from the nature of this blog, these are very important questions for me. Any pointers that you can give me are welcome. Basically the question is, can I go on uploading “videos” of songs that I use as “Song of the Day” on my blog?
So far my practice was, to use only songs that already are on YouTube. Of course that’s a coward’s position, and now I really want to figure it out once and for all time.
The Song of the Day is “There She Goes, My Beautiful World” from the truly sensational 2004 Nick Cave double album “Abattoir Blues/Lyre Of Orpheus”. No need to step out of my comfortable safety, YouTube already had the song 🙂