Are recordings made before 1972 protected under federal law?

If you sample, sync or license recordings made before February 15, 1972, the rules for music sample and copyright clearance for those masters changed in 2018. Before then, these recordings sat outside federal copyright and were protected, if at all, by state law (Copyright Office Circular 22). The Classics Protection and Access Act, Title II of the Music Modernization Act, added a new chapter 14 to the Copyright Act for them. For the wider picture of music rights, see our main entertainment law page.

How to check and clear an old recording, step by step

1. Date it. Confirm the recording was fixed before February 15, 1972, and find the year it was first published. Circular 22 explains how to investigate a work's status.
2. Check the term. Compare that year with the table below to see whether federal protection is still running.
3. Check where it comes from. A foreign recording may have restored U.S. copyright instead, so the chapter 14 dates may not apply.
4. Find the owner. Search the Copyright Office's database of indexed pre-1972 schedules. A missing entry is not permission.
5. Pick the route. A qualifying digital transmission can run on the statutory license; a noncommercial use of a recording nobody is selling can follow the notice process, with a 90-day wait; anything else needs the rights owner's consent.
6. Clear the song. The composition on the record is a separate work with its own owner and its own term.

What did the 2018 law change?

It gave owners of older masters federal remedies. Anyone who engages in a "covered activity" with a recording fixed before February 15, 1972, without the rights owner's consent, is subject to the remedies in sections 502 through 505 and 1203 "to the same extent as an infringer of copyright" (17 U.S.C. 1401(a)(1)). The Copyright Office notes that those remedies can include statutory damages and attorney's fees when its filing rules are met (Classics Protection and Access Act).

A covered activity is anything the owner of a newer recording could do or authorize under section 106 and related provisions (1401(l)(1)). For recordings, that means copying the sounds, preparing remixes and other derivative versions, distributing copies, and performing the recording by digital audio transmission (17 U.S.C. 106). The "rights owner" is whoever held the exclusive right to reproduce the recording under state law just before the law was enacted, or a later transferee (1401(l)(2)).

How long does the federal protection last?

The base period runs through December 31 of the year 95 years after the recording was first published. A transition period is then added, and its length depends on the year of first publication (1401(a)(2)). Whatever the year, the protection stops for every pre-1972 recording after February 15, 2067.

By that arithmetic, the prohibition no longer covers recordings first published in 1925 or earlier. A recording first published in 1926 is covered through December 31, 2026, and one from 1930 through December 31, 2030. Foreign recordings need a separate check: the Copyright Office warns that certain foreign pre-1972 recordings have copyright protection under Title 17, so the table may not describe them (Notices of Noncommercial Use instructions).

Do internet and satellite radio services need permission?

Not if they follow the statutory license. A digital audio transmission of a pre-1972 recording, or an ephemeral copy made to carry it, counts as authorized when it would qualify for the statutory license under section 112(e)(1) or 114(d)(2), or be exempt under 114(d)(1), if the recording were newer, and the service pays the statutory royalty at the rates the Copyright Royalty Judges set under sections 112(e) and 114(f) (1401(b)). The Copyright Office says this mirrors the licenses that internet radio, satellite radio and cable music services use for newer recordings. Our page on how artists get paid when recordings stream on internet radio follows that money.

A service can also license directly from the rights owner. For direct licenses signed on or after October 11, 2018 that cover qualifying transmissions, the service pays 50 percent of the performance royalties to the collective that distributes statutory royalties, and the collective passes them to featured and nonfeatured artists (1401(d)).

Can you use an old recording in a noncommercial project?

Sometimes. Section 1401(c) lets you make a noncommercial use of a pre-1972 recording that is not being commercially exploited by or for the rights owner, if three things happen. First, you make a good faith, reasonable search for the recording in the Copyright Office's schedules of pre-1972 recordings and on services that offer a broad catalog of recordings for sale or streaming, and you do not find it. Second, you file a notice of noncommercial use with the Copyright Office describing the recording and the use. The fee is $50 per notice (Copyright Office fees). Third, the rights owner does not opt out within 90 days after your notice is indexed.

The Office lists the places to search in order: its own schedules database, a major search engine, a major streaming service, YouTube, the SoundExchange ISRC database, and online stores. Recovering your production and distribution costs does not by itself make a use commercial (1401(c)(2)(A)). Willfully filing a pattern of fraudulent use notices, or knowingly filing an opt-out for a recording you do not own, carries civil penalties starting at $250 per notice (1401(c)(6)). And even if the owner does not opt out, the Office notes that the song on the recording may need its own clearance.

What does section 1401 not do?

It does not turn these recordings into federal copyright works. The Copyright Act still says that no sound recording fixed before February 15, 1972 "shall be subject to copyright under this title," and points to chapter 14 instead (17 U.S.C. 301(c)). The Copyright Office describes the change as bringing these recordings partially into the federal system. A few other limits follow from the text:

• No registration is required, and the rights owner can sue without one (1401(h)(1)(B); Music Modernization Act FAQ).
• For statutory damages or attorney's fees, the owner generally must first file a schedule with the Copyright Office listing each recording's title, featured artist and rights owner, and the unauthorized use must occur after the 90-day period that starts when the schedule is indexed (1401(f)(5)(A)). The fee is $75 for one recording plus $10 for each group of 1 to 100 more (schedule filing instructions).
• Fair use, the library and archive exceptions, first sale, the time limits for bringing suit and the safe harbor for online service providers all apply (1401(f)). The section 110 performance exemptions apply as well (1401(f)(1)(A)).
• It protects the recording only, never the song on it.

Why do samples and syncs of old recordings still need clearance?

Because an old record usually carries two sets of rights. The recording is covered by section 1401 until its date in the table above. The song on it is a separate musical work with its own copyright term, which can end earlier or later; our page on how long a song's copyright lasts explains that clock. Lifting audio for a sample, or placing the track in a film, video or ad, copies the recording, which is a covered activity, and it usually uses the song as well. In practice that means permission from the recording's rights owner and a separate license for the composition, as our step-by-step guide to clearing a music sample lays out.

The same layering applies when an old recording sits inside archival film. Our page on when old film footage is in the public domain walks through the picture, the music and the recording as separate questions.

The Copyright Office's database of indexed pre-1972 schedules is a useful first stop to see who claims a recording. A missing entry is not permission: the owner can still sue, and the schedule only affects statutory damages and attorney's fees.

What changes the answer

• The year of first publication. It sets the end date under 1401(a)(2); a recording never published runs to February 15, 2067.
• The recording's country. Section 104A restores U.S. copyright in certain foreign works that were in the public domain here only because pre-1972 recordings lacked federal protection, if its other conditions are met (17 U.S.C. 104A(h)(6)(C)(ii)). Our page on performance royalties for recordings abroad covers the treaties behind that.
• When the use began. Federal preemption of equivalent state-law rights applies to activities begun on or after the Act's enactment (17 U.S.C. 301(c)), so older conduct can still raise state-law questions.
• Whether a schedule was filed. Statutory damages and fees reach only uses more than 90 days after a schedule is indexed. If a transmitting entity filed a notice of contact information, the owner must first send it a notice identifying the recording (Copyright Office).
• The kind of use. An AM/FM broadcast, a statutory webcast, a qualifying noncommercial use and a sample or sync each follow a different rule under section 1401.

A worked example

Common mistakes

• Treating "made before 1972" as "public domain"; most of these recordings are protected for decades yet.
• Relying on old advice that only state law applies, which predates the 2018 Act.
• Reading a missing schedule as permission, when it only limits statutory damages and fees.
• Filing a noncommercial use notice for a recording that is on a major streaming service or for sale online.
• Clearing the master and forgetting the song, or the reverse.
• Counting a 1926 recording as free in 2026; it is covered through December 31, 2026.

What to do this week

1. List each pre-1972 recording you plan to use, with its first publication year and country.
2. Search the Office's database of indexed schedules, and subscribe to its weekly email of newly indexed schedules.
3. For a noncommercial project, run and save each search the Office lists before you file a $50 notice.
4. Identify the song's writers and publisher for the composition license, using our music publishing page as a guide to who controls what.
5. If you own old masters, file schedules so statutory damages and fees become available 90 days after indexing.
6. Note the date each recording's protection ends.

Frequently asked questions

Do AM/FM stations need permission to play a pre-1972 recording?

No. A transmission that would be exempt under section 114(d)(1) for a newer recording counts as authorized here too (1401(b)). Our page on why radio does not pay recording artists explains that exemption.

Can you register a pre-1972 recording with the Copyright Office?

Not as a copyright, since section 301(c) says these recordings are not subject to copyright under Title 17. The Office explains that the schedule filing is designed to operate in place of the registration requirement that normally applies to statutory damages.

Who sets the streaming royalty for these recordings?

The Copyright Royalty Judges, through the same rates they set under sections 112(e) and 114(f) for newer recordings (1401(b)). Our page on who sets music royalty rates explains how those proceedings run.

What if someone says you used their pre-1972 recording without permission?

Take it seriously: section 1401 applies the same remedies as for copyright infringement, including injunctions and damages. Our guide to a copyright infringement demand letter covers the first steps. Our page on copyright infringement damages explains what can be recovered.

How long does an owner have to sue?

Generally three years after the claim accrued (17 U.S.C. 507(b)), a time limit section 1401(f)(2) applies to these recordings. Our page on federal IP lawsuits in Atlanta explains how a federal case runs there.

Zala IP Law advises labels, publishers, producers and production companies on clearing and licensing music. If you plan to sample, sync or license a recording made before 1972, request a consultation or call 404-313-1701.