Why Unreleased Marvin Gaye, Supremes, Beach Boys Tracks Are Suddenly Appearing: EU Copyright Law

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Marvin Gaye performs at Radio City Music Hall in New York City on May 19, 1983.

Are the major labels dropping under-promoted classic music to skirt international copright laws?

On Dec 30th, without much fanfare or marketing, Universal Music Group put out Motown Unreleased: 1966, a digital-only collection of 80 previously unavailable tracks by Marvin Gaye, The Supremes, and lesser-known performers like the Underdogs. It’s one of a few recent archival releases of music from 1966 that may appeal to hardcore fans – and they have the European Union to thank.

In 2011, the EU updated copyright law in a way that means officially unreleased material could fall into the public domain 50 years after it was recorded. That would mean any company would be free to release it. In order to keep the copyright to such recordings – the law applies to live as well as studio material – artists and labels have been releasing them in what some fans call “copyright collections.”

No one involved with Motown Unreleased: 1966 has said that it was put out for copyright purposes, but its timing and lack of promotion and generically titled collections suggests so. It’s one of two such releases last month. On Dec. 9, Capitol Records put out two Beach Boys concerts as the digital album Graduation Day 1966: Live at the University of Michigan (UMG, the parent company of Capitol, did not comment on either release at press time.)

Other releases may have also been timed to take advantage of the law. Earlier last year, Bob Dylan put out The 1966 Live Recordings, a 36-disc set of previously unreleased concert recordings that sells for more than $100, while Pink Floyd issued The Early Years Box Set, a 27-CD collection that goes for almost $500.

A source close to Dylan said that the 1966 project would have been done anyway, although the 50-year deadline provided a push; Sony Music Entertainment, which now controls the relevant Pink Floyd recordings, also declined to comment. Both sets are commercially viable products and are only available as physical sets. The Beach Boys and Motown collections, which presumably have a more limited audience, are only available as downloads and on streaming services.

Fans have embraced these releases since at least 2012, when Sony Music Entertainment put out 100 copies of a four-CD set of 1962 Bob Dylan recordings. Since then, labels have released several collections of Dylan, Beach Boys and Motown material, and the Beatles put out a collection of outtakes for a limited time in 2013. It’s not clear why the Beatles haven’t released any such collections since then – or why other groups, like the Rolling Stones, haven’t put out any at all.

When the EU enacted the 2011 Copyright Directive, its intention was to extend copyright protection for recordings from 50 to 70 years, in order to match the protection given to compositions. But the legislation starts the term of copyright protection for a recording with either its fixation – legalese for recording – or “its lawful publication within 50 years after fixation.”

What about material that’s been unreleased for more than 50 years? “I never heard this mentioned,” says Michael Sukin, an attorney with the Sukin Law Group who was familiar with the creation of the directive. “The European Commission ended up writing this in broad strokes and the record companies were focused on getting that extra 20 years.” EU Directives are often written broadly, since countries adopt them into their national laws in different way.

Several copyright lawyers said they weren’t sure whether material that remained unreleased after 50 years would actually lose copyright protection, but that releasing it was a smart precaution. “It’s still hard for others to exploit this stuff – there are copyright issues with the compositions and name and likeness issues” with releases, says Bill Zysblatt, a business manager who works with high-profile musicians.

            Should fans now expect a flood of high-quality unreleased material as the 50th anniversaries of classic rock landmarks approach? Maybe. There isn’t much demand for bootlegs of most artists, but acts like Led Zeppelin and Bruce Springsteen might choose to release old live recordings in order to protect them. By 2025, when labels address the issue as it applies to 1975 recordings, the trickle of copyright collections could become a flood.

Managers and labels are reluctant to discuss this issue, presumably since copyright skeptics have criticized the 2011 directive. Whatever its merits, though, it has certainly encouraged artists to release material that some fans want to hear.