Who Owns Our Ancestors' Voices? Tribal Claims to Pre-1972 Sound Recordings

Abstract

2016] TRIBAL CLAIMS TO PRE-1972 SOUND RECORDINGS 277 sound recording technologies, state courts actually performed most of the work of determining and defending sound recording rights. State court judges drew on the doctrines of common law copyright, unfair competition, and conversion to protect works from unjust exploitation. 5 Also, state legislatures enacted a variety of criminal and civil statutes providing criteria for ownership rights in sound recordings and penalties for trespass on those rights. 6 However, the need for more comprehensive national protection of sound recordings, particularly after the arrival of the cassette recorder, led to the passage of the 1971 Sound Recording Amendment to the 1909 Copyright Act-nearly a century after the invention of the phonograph. 7 This Amendment added sound recordings to the list of works eligible for federal copyright while also substantially limiting the scope of protection in these works. 8 Importantly, the Sound Recording Amendment applied only prospectively. As codified in 17 U.S.C. § 301(c), "[n]o sound recording fixed before February 15, 1972, shall be subject to [federal] copyright" until at least 2067. Even today, only those sound recordings created after February 15, 1972, are entitled to federal copyright protection. The Copyright Act makes clear that, in absence of federal copyright protection for pre-1972 sound recordings, "any rights or remedies under the common law or statutes of any State" continue to apply. 9 This means that state common law or statutes, if any, are still relied on to determine ownership interests in sound recordings made within their jurisdictions. However, federally recognized Indian tribes are not states, nor are tribal members generally subject to state property laws or to the jurisdiction of state courts for their activities on tribal lands. 10 Because the Copyright Act is silent on what law, if any, applies to pre-1972 sound recordings created on reservation lands, performers, sound engineers, and potential users of sound recordings originating in tribal jurisdictions need to look elsewhere for 5.