Bruce D. Epperson

According to Fred Waring, the NAPA largely collapsed after the  RCA v. Whiteman case, but he believed this had as much to do with the exigencies of the war as with the loss in court.

Soon after the war, a California court heard Blanc v. Lantz. It was unique in two respects: 1) it was the first case to address state statutory copyright, and 2) it was handled in a singularly inept manner.

Mel Blanc was the famous “Ha-ha-ha-ha-ha” voice of the cartoon character Woody Woodpecker. Lantz Productions lifted Blanc’s laugh from one of Woody’s cartoons (apparently for a TV commercial), and Blanc sued for infringement under Sections 980 and 983 of the California State Code. Section 980 read:

The author of any product of the mind, whether it is an invention, or a composition in letters or art, or a design . . . has an exclusive ownership therein, and the expression or representation thereof, which continues so long as the product and the representations or expressions thereof made by him remain in his possession.

Similarly, Section 983 stated that “If the owner of a product of the mind intentionally makes it public, a copy or reproduction may be made public by any person, without responsibility to the owner.” Admittedly, the specific language of the statutes made for hard interpretation — how can one have the exclusive right “of expression or representation,” but only so long as the work remains in one’s possession and isn’t made public? But the court chose to make a rather artless set of interpretations. In effect, it turned the phrases “remain in his possession” and “make public” into “not yet published” and “publish,” respectively, despite case law on the federal level that had drawn a distinction between “making public” and “publishing.” In other words, it could have been possible to interpret the law in such a way that one could publish a work (in the federal sense), yet retain possession (in the California sense).

Reviewing prior case law, the court determined that there were two possible definitions for “publication”: 1) To intentionally make public by performance or other means; or, 2) To reproduce in tangible form capable of distribution to the public generally or in part. The court leaned towards number two, but selected neither, because it held that Blanc’s laugh had been published under either definition.

But it was right at the end that the opinion simply fell apart:

We are confronted with a situation where, for the purposes of this [lawsuit], the plaintiff had created a musical composition which he could have copyrighted under federal law and thereby secured a limited monopoly to his exclusive performance of his intellectual product. By failing to so protect his work, yet by electing to exploit it commercially not only by personal performance but also by reproducing his work in a tangible form permitting general circulation of that composition by way of copies.

The clear implication is that Blanc’s Woody Woodpecker laugh was a musical song that could be composed and copyrighted. That’s a stretch, but possible. Even assuming a five-note song could be copyrighted, the whole discussion until now had been about Blanc’s rights in the sound recording, right up to the preceding paragraph, which discussed the Waring and Whiteman cases. Why the court veered off onto the topic of composition rights, and why it asserted that having a federal copyright in a given composition somehow alters one’s state-law rights in a sound recording, is an utter mystery. It wouldn’t be the last time that a court would mash together the two. Blanc v. Lantz was a lost opportunity—a legal train wreck that would take until 1971 to clear up.

To be continued…