Bruce D. Epperson

The district court’s holding in RCA Mfg. Co. v. Whiteman is really a rather extraordinary one. It asserts that musical performers have always had a property right in the skill and creativity that goes into their performances, but that because it could not be captured, and thus rendered into any kind of commodity, the question of how it should be treated as property was moot. Thus, the issue is not whether there is a performers’ right to the sound recording, merely, how it should be recognized by the courts.

The court also went on to agree with the Waring courts that the restriction label “for home use only” resulted in a limited distribution of the record. The radio station appealed, and the case ended up in the courtroom of the brilliant, quirky judge Learned Hand.

Judge Hand was a legal genius. He would often spot issues that were still way over the horizon, conflicts of law that would not ripen for another ten or twenty years. Unfortunately, in his haste to get there, he would dash past the current issues of the case with a wave of the hand, often mashing two or three thoughts together in a single point or skipping a step or two in the logic of his opinion.

In mid-July, 1940, three days before he rendered his opinion in the Whiteman case, Hand issued an opinion in a seemingly unrelated case, Fashion Originators Guild v. Federal Trade Commission. The Guild was set up to protect dressmaker’s patterns, to stop what they called “style piracy.” The FTC charged them anti-trust collusion. At the hearing, the Commission, having established that the dressmakers were acting in concert to keep non-members from poaching their designs, refused hear their defense that they were protecting a legitimate and defensible property right. Once collusion was established, claimed the FTC, the case was over.

Judge Hand rejected this, and in essence performed the second half of the FTC’s inquiry hearing himself. He quickly determined that the Guild members did have a intellectual property rights in their dress designs. It was not covered by federal copyright, so fell within the common-law of the state of New York. Most of the analysis revolved around whether the dress designs were “published” and thus divested to the public. “We have been unable to discover any case which squarely presented this situation,” lamented Hand, “that is, in which intellectual property, not covered by the copyright act then in existence, was challenged because of its ‘publication.’”

Hand went all the way back to the 1774 Donaldson v. Beckett case. The House of Lords, in the second of their three votes, had decided that in the absence of the Statute of Anne, the publication of a work did not cut off its author’s common-law copyright. The implication of this was that common-law copyright was either: 1) perpetual until cut off forever by statutory common-law copyright (the majority view); or 2) absolutely perpetual, but temporarily replaced by statutory copyright until its term expired; at which point common-law copyright was revived (i.e. “the cupcake theory”).

Hand rejected the entire House of Lords vote, at least as it applied to American law. He objected that any perpetual state common-law copyright, that did not mandate divestment upon publication defeated the purposes of the “limited times” restriction of the Progress Clause. This was, in essence, tantamount to arguing that when a thing fell within the Constitutional definition of a writing, but Congress chose not to include it within statutory copyright, it couldn’t be published without entering the public domain. That’s because publication divested it of its common-law copyright status, but it had no statutory copyright status to pass into. That left one glaring hole in the chain of legal reasoning. If a writing was outside of federal copyright law, why should it be subject to that same law’s definition of “publication”?

To be continued…