Music Part 2: When Can Recordings of Public Domain Music Composed More Than a Hundred Years Ago Be Used Without Asking Permission?

POSTED ON February 20, 2018 / IN Documentary Toolkit


Neil Rosini

This Q&A was originally published in the Summer 2017 issue of Documentary magazine, a publication of the International Documentary Association, a nonprofit media arts organization based in Los Angeles.


The answer is virtually never.

This is because, as already noted, each recording of a musical work has two copyrights: the copyright in the underlying musical composition, which could be written down on sheet music, and the copyright in the sound recording, which is an audio capture of a performance of the underlying composition.

Although a musical piece that was first published more than a hundred years ago — or otherwise has entered the public domain — is free for the taking, a recording of a performance of that piece by a vocalist or a symphony orchestra or a banjo band or anyone else is virtually never in the public domain in the U.S.

This result flows from some quirks of copyright law.  Sound recordings were not protected by federal copyright law until 1971.  Recordings made before that date are protected, however, by state law, and that protection can last as long as 2067.  Recordings made after 1971 are almost universally protected under federal law for about a century from initial publication or registration of copyright, give or take.

So set aside others’ recordings of “The Ride of the Valkyries,” seventeenth century mandolin tunes and Gregorian chant — unless you plan on licensing them from their copyright owners.  Alternatively, you could make a new recording of the public domain music yourself.

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