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…