Monthly Archives: October 2013

A Circle and a “C”: One Hundred Years of Recorded Music in American Copyright, Part 19 || By Bruce D. Epperson

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Judge Gurfein simply developed his own system—one that was as simple as it was clever:

The use of phonograph records without compliance with the Copyright Act bars claims for infringement not because the record is a “copy” or a “publication” but because any other interpretation leads to a conflict with the Federal statutory scheme. Section 2 [of the 1909 Act, allowing states to extend common-law copyright to unpublished material] would still be read as applying to unpublished works protectable at common law, including unpublished musical compositions where no mechanical recordings have been made.

Here, Gurfein is proposing that a music composer who had neither published her composition on paper nor issued it on a record would be treated the same as any other author of undistributed manuscript material. She would be covered by state common law copyright, irregardless if her “manuscript” was a book, sheet music or an uncirculated record. He continued on:

On the other hand the failure to file notice [for the 2-cent-a-copy royalty] should not bar the copyright owner forever. By analogy, then I hold that the sale of phonograph records is not a divestment of common-law rights by publication, but that it does inhibit suit against infringement until the statutory copyright is obtained.

Once the composer had circulated her song composition on a record, without securing a Class E sheet music copyright, others would be free to use it without filing a notice or paying the mechanical fee royalty. In addition, they would be immune from suit by the composer for state common-law copyright infringement. However, the author’s compositions would not be permanently divested into the public domain, because phonorecords aren’t copies. Thus, once the author had secured her Class E copyright, other parties would be obligated to file notice and start paying mechanical fee royalties. The author could also start to use state common law to enjoin any further illegal record sales.

The real beauty of this system is that it could be made to work just as well for sound recordings. Since sound recordings made after February, 1972 were separately copyrightable under Class N, Gurfein’s solution pointed a way towards a workable method for pulling pre- and post-1972 recordings into a single system. A pre-1972 recording could be replicated by others, because it wasn’t a “copy,” but once it was registered under the new system, such replication had to cease. Although the appeals court upheld both Gurfein’s novel decision, and his award of $14,300, it was now late 1976, and Congress had finally seen fit to replace the 1909 Copyright Act, but not as envisioned by Judge Gurfein. On the other hand, the legal world had not heard the last of Marion Rosette or her nursery rhyme songs.

To be continued…

A Circle and a “C”: One Hundred Years of Recorded Music in American Copyright, Part 18 || By Bruce D. Epperson

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Between February 15, 1972, when the Copyright Act’s section on phonorecords was modified, and October 19, 1976, when the old 1909 Act was entirely replaced, sound recordings lived in sort of a legal netherworld. Before 1972, music legally existed, as far as the federal government was concerned, only in the form of musical compositions, written in the form of visible notation, on paper.

After the February 15, 1972 action, a phonorecord was still not considered a copy of the composition. A disc or tape could not be submitted to the Copyright Office in lieu of a paper score for the purposes of copyrighting a composition. However, a new “Class N” copyright (Sound Recording) was added to the traditional “Class E” (Musical Composition) copyright. Class N material included “works that result from the fixation of a series of musical, spoken or other sounds,” including music, drama, or narration. Only works first affixed onto disc, tape, cassette, piano roll, etc. and published after February 1972 were eligible for submittal. “Affixed” was defined as “when the complete series of sounds constituting the work is first produced on a final master recording that is later reproduced in published copies.”

Under Class N only the sound content itself was protected. A composition or arrangement could not be registered by sending in a record or tape. Unlike books and other works, which were required to bear the © symbol, copyrighted sound recordings had to carry a circle-P symbol.

In a coincidence, the timing of the law, along with a brilliant new theory advanced by a New York federal court judge, almost revolutionized copyright law in regards to phonorecords, both in their composition and sound recording aspects. Alas, Judge Gurfein was a prophet before his time.

Rosette v. Rainbow Records was a 1973 dispute over composition rights. Keep in mind that thus far we have been almost exclusively talking about whether issuing phonorecords publishes the sound recording, not the composition of the songs on the disc. Marion Rosette was a composer and performer of children’s songs, most based on classic fairy and folk tales. She had been publishing since about 1964; all the records in this dispute were from the pre-1972 period. Rainbow issued exact reproductions of at least 33 of her songs. Rosette had not registered federal copyright in any of her compositions, so she sued under New York state law. Rainbow asserted that by issuing records, Rosette had published her compositions, divesting them to the public.

Reviewing precedent, Judge Gurfein found little guidance. Shapiro, Bernstein v. Miracle Records (Ill., 1950), implied, but didn’t directly state, that publication divested composition rights. Mills Music v. Cromwell Music (S.D.N.Y. 1954), stated so outright, but the point was tangential to the case. The same was true for McIntire v. Double A Music (S.D. Cal. 1958). The one exception was Nom Music v. Kaslin (S.D.N.Y., 1964), in which the court held that issuing records did not publish the composition because records were not copies. (Shapiro, Bernstein is the only case I have previously discussed.)

The problem was that section 2 of the 1909 Copyright Act gave almost unlimited protection to “unpublished” works. The jury-rigged two-cents per copy “mechanical reproduction” fee provision in section 1 obviously required some kind of registration system, but section 5 of the Act didn’t include phonorecords as works eligible for copyright registration, and of course the entire Act excluded records as copies. Lacking any help from precedent, and forced to admit that the Copyright Act was the problem, not the cure, he devised his own solution.

To be continued…

A Circle and a “C”: One Hundred Years of Recorded Music in American Copyright, Part 17 || By Bruce D. Epperson

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In 1971, the State of California indicted several LP bootleggers with 140 counts of music piracy under section 653h. They eventually pled guilty to ten counts. The state law prohibited the duplication of a commercial recording for sale; compositions were protected by federal law. The Supreme Court consolidated their appeals under the name Goldstein v. California. The defendants advanced three arguments: 1) the California statute permitted a state copyright of unlimited duration in derogation of the “limited times” provision of the federal Progress Clause; 2) the state law violated the provisions of the Court’s previous Sears and Compco holdings; and 3) states could only protect unpublished writings, and under the definition of “published” in federal law, the recordings had been divested.

The Court rejected all three. The Constitution’s Progress Clause did not prohibit the states from also exercising their own copyright powers, nor did it limit those powers. Thus the “limited times” provision only applied to the federal government, and if a state wanted to make its protections perpetual, it was free to do so. During this discussion, the Court raised some points that have been ignored in the excitement over the Capitol v. Naxos case. It emphasized that “a copyright granted by a particular State has effect only within its boundaries,” and that this situation

is no different from that which arises in regard to other state monopolies such as a state lottery, or a food concession in a limited enclosure like a state park; in each case citizens may escape the effect of one State’s monopoly by making purchases in another area or another State.

However, it admitted that conflicts “would arise, for example, if each State exercised a sovereign power to levy imposes and tariffs.” The fact that Capitol Records, a corporate resident of New York, was able to use the Capitol v. Naxos decision, ostensibly effective only within that state, to force Naxos, whose American division is a corporate resident of Nashville, to curtail much of its activities across the United States, leads one to wonder if it did result in just this kind of state-vs-state trade barrier-ism.

But most of the opinion dealt with the Sears-Compco issue, which the Court turned into a disquisition on the thorny question of whether sound recordings are “writings,” and what their status was under the 1909 Copyright Act. The Court concluded: 1) “writings” as defined in section 4 of the Copyright Act, did not include everything eligible for copyright under the Progress Clause; 2) there were things that are “writings” under the Constitution, but which Congress chose not to include within federal copyright law; 3) sound recordings were one of these things; 4) “publication” was a term of art applying only to situations arising under the federal Copyright Act; thus, a state may use a different definition. The Court never addressed whether section 653h fell within the “palming off” provisions of Sears and Compco, or what standards a state had to meet to have a valid anti-music-piracy statute.

It was a close decision, 5-4. There were two dissents. One was grounded in Judge Hand’s dissent in Capitol Records v. Mercury Records; the other in a text of the Copyright Act itself. Both said essentially the same thing. The Copyright Act covered, in a blanket manner, everything that was a “writing,” that is, everything Constitutionally capable of copyright. Section 5 of the Act then listed those things that were intended for protection through registration. Sound recordings weren’t there. Thus, sound recordings were covered by copyright law, but “coverage” did not include “protection.” Because they were covered by federal law, although without protection, state law was preempted. That being so, the dissent implied that the majority should have taken the next step of determining if section 653h met the “palming off” criteria in Sears and Compco, but it didn’t.

Both sides noted that their opinions were somewhat transitional, because by that time, the law had changed.

To be continued…