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 Section 2 [of the 1909 Act, allowing states to extend common-law copyright to unpublished material] would still be read as applying to unpublished works protectable at common law, including unpublished musical compositions where no mechanical recordings have been made.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…