By Bruce D. Epperson

It was the inability of the other justices (and, for that matter, most congressmen and industry executives) to grasp that a phonorecord was comprised of two separate elements that muddled the Court’s decision and the deliberations of the Congressional copyright committee. First, there is the musical composition, an idealized musical concept, which can usually be published on paper. Second, there is the sound recording, a “rational collocation of sounds,” the specific actual expression of a performance or a sequence of captured sound. This can be the playing of a composition, an improvised musical performance, or even non-music.

Moreover, in basing the idea that a “copy” must be a “written or printed record” of the original, the majority came very close to, if not outright stating, that a record could never meet the eligibility criteria of the Progress Clause. Albert Walker, lawyer for the Victor Co., subsequently told the copyright committee that “the Supreme Court says these perforated rolls are not copies. If not, they are not writings.” This, of course, is a logical inversion, but in the air of uncertainty after the White-Smith Music decision he was able to get away with it.

 On the other hand, Walker’s boss, Horace Pettit of the Victor Co., told the committee that Section 4 of the proposed act, which made “all the works of an author” eligible for copywriting, actually pulled phonorecords within the class copy-eligible works. However, noting that this was “somewhat doubtfully expressed,” He urged the committee to add records to the list of things like books, magazines, maps, drawings and photographs for which specific copyright registration could be sought from the copyright office. The committee refused this suggestion, making an (almost literally) last-minute decision.

Phonorecordings would not be considered “copies” of a composition, and couldn’t be copyrighted. However, provided the composition was registered and the composer had allowed at least one person to record it, then all comers could too, if they paid a mandatory license fee of two cents a copy. This was somewhat analogous to the licensing system used  for stage plays.

Congress made one other change in reaction to Pettit’s testimony, and in doing so, created a century-long conundrum, and not just for phonorecords. They changed Section 4 of the Act from “That the works for which copyright may be secured under this Act shall be all the works of an author” to “That the works for which copyright may be secured under this Act shall be all the writings of an author.” “Writings,” of course, is the language used in the Constitution, so it defines the maximum power that Congress can exercise. But in making the 1909 change, did Congress mean that all writings fell under the umbrella of the act, but that it could refuse registration and protection to some of them (such as records); or did it mean that some products of artistic creation (like records) were not “writings” and thus were Constitutionally outside of Congress’s power to exercise power over them pursuant to the Progress Clause? As Pettit feared, what ensued was almost a century of legal chaos.

To be continued…