Part 28

Having decided that issuing phonorecords publishes the underlying composition, the court was unable to go any farther. If La Cienega had issued the “Boogie Chillen” records in 1948 and 1950 without the required Circle-C or Circle-P symbols, they would have fallen into the public domain immediately, according to the majority. If the required symbols had appeared, they would have gone to public domain status in 1976 and 1978, 28 years after they were issued. The court did not have this information. Nor did it have any information as to whether the 1970 version (registered only as sheet music and apparently never issued on a record) complied with copyright formalities. Therefore, it remanded the case back to the trial court for clarification. 

As Judge Fernandez noted in his dissent, this was a dubious line of argument: “if a record is not a copy [under the 1909 Act], then placing a copyright notice upon the record itself would do no good at all because the notice is to be affixed to ‘each copy,’” he explained. “Thus, under the majority’s view the result is that a record is a publication for the purpose of divesting the author’s copyright protection in the underlying musical work, but it would not be a publication for the purpose of investing that musical work for protection.”

Section 9 of the old 1909 Copyright Act stated that any person entitled to copyright under the act “may secure copyright for his work by publication thereof with the notice of copyright required by this Act.” Publishing a book with the circle-C on the title page invested the book with copyright status. But the White-Smith decision had said that phonorecords weren’t copies, so section 9 didn’t apply. But now, the majority was saying that by issuing a phonorecord, the composition’s copyright was lost through divestiture. A song’s author was caught in a Catch-22: issuing the song on a record with the circle-C or circle-P gained nothing, because the notice wasn’t affixed to “each copy,” but issuing it without the notice lost copyright, because it was divested publication.

No subsequent decision was ever issued from the district court, so presumably a settlement was reached. The immediate impact of this case was shock, because it was the first case, after Rosette, to come down squarely for the idea that the compositions within phonorecords were published when the records were issued to the public, possibly even to the extent that a later registration of the music in sheet music did not rehabilitate the rights to it.

To be continued…