By Bruce D. Epperson

Starting this month, and continuing in several installments, we will examine American copyright law as applied to recorded music, and how it got to where it is. The aim will be to use a plain-language, non-legalese approach that is largely historical and that uses real-people, places, and things as illustrative examples. However, because many of these “real-world” situations were first recorded in the courts in the United States and Britain, we will frequently be talking about legal cases. However, I intend, as far as possible, to ignore the legal technicalities and small print that lawyers love in favor of a big picture. I also will take a middle-of-the road approach politically. I am neither a fan of most of the “creative commons” approaches that argue that information and cultural works should inherently belong to everyone, and thus copyright protections should be as small as possible, nor do I believe that granting near-absolute and perpetual copyright terms, especially to assignees other than the actual creator, is vital to maintaining a thriving entertainment industry. Rights in property must be balanced between individual autonomy and social needs, and the fundamental principles guiding this balance, in my opinion, do not change simply because we are discussing intellectual, not tangible, property.

We will use as our springboard the court case of Capitol Records v. Naxos of America, Inc. It was actually a series of five separate decisions published between 2003 and 2005. The critical opinion was the one issued by New York State Judge Graffeo in April 2005 in Capitol v. Naxos IV. In 1996, Capitol received a license from the British firm EMI to produce and distribute in the U.S. classical recordings, including some by Yehudi Menuhin, Edwin Fisher and Pablo Casals, that EMI’s predecessor, Gramophone, had issued in England in the 1930s. The U.K. copyright of these Gramophone/EMI records had expired prior to 1986. In 1999 Naxos, believing they were also in the public domain in the U.S., produced and sold some of these recordings on CD by running copies of the original Gramophone shellac records through modern playback machines augmented with digital enhancement and noise reduction software.

It was soon established by a federal court and the parties themselves that no U.S. federal copyright violation had occurred, but a federal appeals court referred the action to the New York state court system for clarification as to whether the laws of that state applied. The New York Court of Appeals (its supreme court) determined that because the records were made before 1972, when the U.S. began to cover sound recordings in its copyright law, Naxos did violate New York state copyright law, even though the English copyright had expired.

To reach his decision, Judge Graffeo reached all the way back to the English Statute of Anne of 1710, and so shall we. Many lawyers who have read the Capitol v. Naxos IV case have accused Judge Graffeo of bad faith because he cited U.S. case law that veered back-and-forth between cases that dealt with musical compositions, which have been copyrightable since 1831, and sound recordings—the aural material contained on a single record or tape–which have only been copyright-eligible since February 15, 1972. They correctly point out that the chain of legal reasoning—the so-called precedent—is entirely different in each case. They maintain that the two cannot be woven together to form a single united argument. We will go into the background of many of these cases, which extend from Fred Waring and His Orchestra to Z.Z. Top, to show that there is a consistency—but only if Judge Graffeo was making an argument for something very different from that in the plain language of his decision. Between now and then, we have a very winding, but fascinating, road ahead of us.

To be continued…