Bruce D. Epperson

Almost nobody involved in the three-year-long struggle that resulted in the Copyright Act of 1909 was satisfied with the outcome, but most believed that its most glaring errors and oversights—the failure to adequately address mechanical sound reproductions, the lack of coordination with the 1896 Berne Convention, and so on–would soon be ironed out. Nobody would have believed you if you had told them that the process would require another 67 years. The Dallanger bill of 1924 died in committee. The Perkins bill of 1925-26 barely went farther, mostly because of objections to the Berne Convention standard requiring investiture at the moment of creation, not upon publication or a formality like registration.

The Vestal bill of 1931 actually passed the House, but was filibustered to death in the Senate. The Sirovich bill of 1932 was a non-starter, as was the Duffy bill of 1934-36, and the Shotwell bill of 1938-39. In 1954, Congress permitted the United States to join UNESCO, but wouldn’t adopt the Berne Convention. The first legislation approving any sort of minor revision passed in 1947. Six more tweaks were added between 1948 and 1972. In 1955 the Register of Copyrights began preparing the first of 34 major studies, the start of a major overhaul process that would take 21 years (and 5,400 pages of reports, drafts and testimony) before the next comprehensive revision was passed in 1976.

One of the major uncertainties was the status of the “sound recording,” the specific expression on a phonorecord independent of its composition. (Sound recordings can include the performance of a composition, an improvised performance, or even non-musical sounds, such as spoken words or nature sounds.) First, it was uncertain if sound recordings were “writings” for the purposes of the Constitution’s Progress Clause, thus falling within the category of things eligible for federal copyright protection. If they weren’t writings, could they be protected by state-law (also known as common-law) copyright? If they were writings, and were copyright-eligible, but Congress had simply elected not to extend them protection, what was their status under either federal or state law?

Second, did selling a record with a song, be it copyrighted or not, release either its composition or the sound recording into the public domain? After all, if phonorecords weren’t copies of the compositions of the songs they contained, how could their sale amount to a publication of their contents? Were they some special form of performance?

Within months of the new Act, the issue arose in the courts in Fonotopia Ltd. v. Bradley. Victor, Columbia (and its British subsidiary, Fonotopia), and others alleged that the Continental Record Co. was dubbing their records and sued for unfair competition under New York state law. The court faced a dilemma. This was not a patent, copyright or trademark case. Traditionally, unfair competition involved harm to the public from the palming off of inferior goods off to the public under a well-known brand name. But Continental sold the records under their own name, and claimed they were just as good. Judge Chatfield pointed out the problem:

The basis of recovery is the damage to the property rights of the complainant, rather than the deception of the public. It is from this contended: the better the imitation the greater reason there is for issuing an injunction. . . it would seem that where a product is placed upon the market, under advertisement and statement that the substitute or imitating product is a duplicate of the original, and where the commercial value of the imitation lies in the fact that it takes advantage of and appropriates to itself the commercial qualities, reputation, and salable properties of the original, equity should grant relief.

This, for the first time, was a clear, well-defined explanation of how and why the long-standing tort of unfair competition could be extended into a thing resembling modern-day “common-law” copyright.

To be continued…