To Build a Retro Sonic World, Learn Some Retro Copyright Law

Note from Julia: The fiction podcast Metropolis from Lux Radium has everything I could possibly want: it follows the misadventures of a spunky gal-reporter as she tries to unravel the dangerous secrets of a mysterious, robot-fueled Arctic city. I’ve written elsewhere that, like many American listeners, I’ve had an unconscious aversion to audio drama, conditioned by years of hearing radio deliver only news, commentary and documentary. But Metropolis pulls me in, not just with its smart writing and convincing cast, but with immersive sound design. When I hear each episode, I’m plunged into a place both menacing and…jazzy? Metropolis builds its alternative world in layers with strange mechanical hums and scratchy old disc recordings.

But like most things in audio, building that world is easier said than done. Lux Radium’s Dan Koch is a subscriber here, and a while back he wrote me about the challenges of finding and using old music in the public domain. So I asked if he’d write a guest post. He sent me the following explainer loaded with fascinating details and amusing asides. I had no idea how much malignant neglect has surrounded musical copyright law in the US. But now Dan is here to make us all wiser. Scroll to the end for his list of public-domain resources.

A neon fantasia via public domain

Like any creator of independent audio drama, there are two things that I hold closely to my heart: a love of the public domain, and a deep, masochistic desire to learn things in the most painful way possible.

In the summer of 2024, I started releasing my new audio drama: Metropolis. Audio drama is about immersion. The first thing it must do is establish its space. Where are the characters? How do they occupy this place? How do they move about it? What else is happening there? Immersion relies on the belief that the characters you’re hearing are not voices in a void, but beings that exist in a reality that is whole and tangible. You need to believe that Metropolis exists, that every space in it is alive and pulsing and plausible, and that the characters are actually there within its roaring neon pandemonium. Believe that, and soon you’ll be in Metropolis yourself, which is exactly where we want you.

That’s our ambition — and I’d like to think we’ve pulled it off. But on the way to creating the sonic world of Metropolis, I’ve learned some things in few excruciating yet fascinating ways. It put me on a collision course with American intellectual property law and its bizarre history.  

Some things I’ve learned:

• It is not possible to love the public domain more than music publishers hate it. That is because there is no number greater than infinity.
  

• If you are relying on the United States Congress to provide clarity on something, you are going to live a very confused life.
  

• Pursuant to (1) and (2): the recording of Elvis Presley’s 1956 debut album will still be in copyright four years after the copyright on 1971’s Led Zeppelin IV expires.

In building the soundscapes for the chaotic, semi-deranged world of Metropolis, I had discovered an even more chaotic, fully-deranged tale of how copyright came to be for American music. The result is a story almost as wild as the story within Metropolis itself.

110 years of kicking the can

When you create an audio drama named Metropolis and you develop the whole show around a depraved maximalist fantasia of 1920s-era retro-futurism, you ultimately have one objective: put your listeners in Metropolis.

The secret weapon I wanted to use to breathe life into this world?  Diegetic music.

“Diegetic” is a fifty-cent word for a simple concept — it’s the music that exists within the fictional world, the stuff your characters can hear. The reality of Metropolis — with its neon bacchanalia and the roiling mysteries beneath it — was clearly a place that should be filled with music. Jazz, foxtrots, waltzes, torch songs, sonatas, blues — a river of this needed to flow through every corner of this world, from radios, from orchestras, from street corners, or even just hummed by the characters.

The problem with all of this — one that the perpetually budget-minded indie audio drama producer feels keenly — is that good music is expensive. And licensing music for a podcast is fraught with enough peril that the general guidance for any independent audio drama producer is: “don’t even try it.”

This is where I thought I had achieved a coup with Metropolis. The show is set in an alternate 1927. The common understanding of copyright law — thanks to Mickey Mouse and Disney’s eventually-conceded battle to keep him out of public domain — is that copyrighted works in the United States reach the public domain after 95 years. That means that here in 2025, the 1920s would now seem fully liberated and available for free.  

Reader, there was some incredible music recorded in the 1920s — something I understood abstractly before I started digging for Metropolis, and quite intimately once I’d actually started digging through the crates of shellac 78s. Paul Whiteman, Mamie Smith, Fletcher Henderson — this incredible wealth of well-preserved music still retains its catchiness, its hooks, and its power a century onwards. This was exactly the music that would breathe life into the manic neon spaces of Metropolis.

But as I queued Duke Ellington’s Wonder Orchestra’s Jubilee Stomp — recorded in 1928 — as the hall music for a particularly dissolute Metropolite party, I was about to learn that everything I knew about musical copyright was wrong. And, I’m going to guess, everything you know about musical copyright is also wrong. All of this ties back to the extremely colorful history of musical recording, and a copyright office that has never quite known what to do with it.

When player pianos broke the Supreme Court’s brain

To understand the impossible tangle of musical copyright, it’s important to draw the distinction between musical composition copyright (covering the notes that comprise the music) and musical reproduction copyright (covering the recording of a specific performance of that music).  It’s actually a pretty intuitive distinction — you likely know that the complete works of Franz Schubert are in the public domain by now, but you likely also know that you can’t just grab a performance of Symphony No. 9 off YouTube for your podcast without the Cleveland Symphony Orchestra getting bent out of shape about it.

Musical composition copyright works basically the same way Mickey Mouse’s does — it’s 95 years for corporate works or 70 years from the death of the author for individual works (with some exceptions; there are always some exceptions that are not worth getting into).  

As for musical reproduction rights…oh boy.

Musical reproduction rights are a problem of modernity. If the only means of musical reproduction is live performance, there’s nothing durable to copyright. Once the possibility of mechanical reproduction was introduced at the end of the nineteenth century, US copyright legislators reacted by…doing very little. Ignoring the problem, really. For 80 years.

What little regulation did occur during this time was actually initiated by the Supreme Court, who in 1909 issued a ruling for White-Smith Music Publishing Company v. Apollo Company. What was that case about? The paper rolls etched with rectangular notches that could be loaded into a player piano. The Supreme Court ruled that these rolls were not a copyright-violating copy of a musical composition, because they were not in a form intelligible to a human being (completely ignoring the fact that they obviously became quite intelligible once they found their way into a player piano).

This ruling tore a large hole in the copyright law — large enough to finally force Congress’ hand to acknowledge the existence of mechanically reproduced music.  What they did, via the Copyright Act of 1909, was to acknowledge that mechanically reproduced music did need to license the original composition. Otherwise the reproduction would violate the original’s copyright, and set the terms for how those original compositions could be licensed. What Congress did not do was establish how those mechanical reproductions could themselves be copyrighted. Which meant that mechanical reproductions (i.e., recordings) couldn’t be copyrighted at the federal level. And that’s the way it stayed until 1971!

You may have noticed that recorded music became kind of a big deal in the meantime. Congress’ unwillingness to create any new copyright law for it left a vacuum filled with a patchwork of state statutes and case law — a dream for the litigator billing by the hour and a terrifying morass for everybody else. Adding to the complexity, some of the local case law established no expiration date for recording copyrights, effectively granting indefinite ownership to anyone with enough capital and legal tenacity to defend their copyright in those jurisdictions.

After 60 years of letting this situation fester, Congress finally passed the 1971 Sound Recording Act, which established copyright protections of all sound recordings made after February 15th, 1972.  

What did it do for music recorded before February 15th, 1972? Nothing. All recorded music up to that point was left in its uncomfortable legal purgatory.

This was already something of a problem when the act was passed in 1972, but the next few decades of copyright law were spent more focused on protecting the recordings that were explicitly copyrighted than fretting about the ambiguous status of the increasingly creaky stuff that wasn’t.  

As the MP3 era gave way to the streaming era, this unaddressed problem once again festered into something too painful to ignore. Two factors were in play. One is that streaming now made the entire history of recorded music accessible and commercially relevant again (inasmuch as music labels wanted to be able to license their entire library without needing to litigate dotted lines around parts of it). The second factor was the growing question over when musical recordings could finally enter the public domain. That popular concept of 95 years for copyright expiration? That window had started to creep past the archaic, negligible realm of the Edison wax cylinder and into musical recordings with broader modern appeal. In other words, people like me were asking when they’d get free access to the great recordings of the post WWI era.

So Congress finally, belatedly, decided to resolve the mess they’d been neglecting since the second Grover Cleveland administration. 

The Music Modernization Act of 2018 included the CLASSICS Act, which attempted to, once-and-for-all, establish the copyright status and expiration for all sound recordings under US jurisdiction. The CLASSICS Act brought musical recordings into a copyright schedule similar to all of the other media the US Copyright Office oversees, thus ending a nightmare over a century in the making.

Except…

Does this mean that all sound recordings over 95 years old are now in the public domain, just like Mickey Mouse is — and just as I had been assuming for Metropolis? No! It doesn’t! That rude awakening is what clued me into this huge mess in the first place, right around the moment Metropolis’ attempted use of “Jubilee Stomp” was lighting up all of the IP content scanners like a pinball machine entering multiball.

Turns out, the copyright window for music under the CLASSICS act is actually 100 years. [😱 —JB]

And even then, there’s a catch: when the public domain window reaches music recorded between 1947 and 1956, it suddenly becomes 115 years. (That is why Elvis Presley’s debut album will still be in copyright four years after Led Zeppelin IV.) This explains why “Jubilee Stomp,” at a spritely 97 years old, is currently under copyright and still ineligible to echo in the crystalline dance halls of Metropolis. A rude awakening indeed.

What leverage did the music labels have that the Walt Disney Company didn’t? It all goes back to the vacuum of clarity that existed from decades of Congressional neglect. Remember: that vacuum had been filled with case law that implied an indefinite license for many of these recordings. For the music labels to concede that those tracks would ever be allowed to enter the public domain, concessions had to be made. “Blue Suede Shoes” must not be allowed to see Halley’s Comet again without Sony BMG making money off of it.

For us, there is still some solace. I may have lost “Jubilee Stomp” and everything recorded from 1925 to 1929, but anything recorded before 1925 is now unequivocally in the public domain in the US, and a lot of that music is fantastic and quite well preserved. For Metropolis (which, again — all modesty be damned — is a really, really good show that you should check out), I still have access to an ocean of wonderful music to conjure a rococo retro-futurist jazz nightmare. It will just be a very, very long time before anyone steps into Metropolis in a pair of blue suede shoes.

JB: Thanks so much to Dan Koch for getting us up to speed on janky US musical copyright law. Go get Metropolis in your ears ASAP and leave them a nice review! And if you have an idea for a guest post on the intersection of audio’s past and present, please drop me a line.

👉 Here are Dan’s recommendations for finding and vetting music that may be in the public domain:

• The YouTube channel JazzCrazy maintains a playlist of 78 RPM recordings now in the public domain. JazzCrazy is one of the most prolific online archivers of 78s, and they do a fantastic job at both digitizing their collection in a low-noise way and recording the backstory behind this music. An incredible resource.
  

• Another YouTube channel doing incredible 78 preservation work is The78Prof, which has its own series of high-quality captures of 78 RPM music.
  

• The Internet Archive also has a broad collection of digitized 78 RPM and wax cylinder recordings of varying quality that can be worth sifting through.
  

• For any recordings you do find, you’ll want to check their provenance — and especially their release date — to confirm whether they are indeed in the public domain. For this, UC Santa Barbara has assembled the Discography of Historical Recordings, which is a comprehensive reference of all recordings and their release dates.
  

• There is also some excellent music being released directly to the public domain (or under extremely open Creative Commons licenses) by their creators. Pixabay and Classicals.de are two good sources for this music — but remember to always check the license for a given track before you use it.