Part 29

Z. Z. Top was decided by the Ninth Circuit Court of Appeals, which covered California. The next case in the line of succession came out of Tennessee in 1977, and never went beyond the federal district court. Aubrey Mayhew alleged infringement of 42 of his country-and-western songs, all from the pre-1972 period. This was, to use legal slang, a “blown decision”; almost too odd and convoluted to use for anything. The court briefly considered Rosette, which it denigrated, and Z. Z. Top, which it complemented. But to reach its decision, it turned to a case decided eighteen years earlier and never published in any of the reporters, Leeds Music Corp. v. Gusto Records.

Leeds v. Gusto involved a spoken-word comedy routine by Ray Pinkston entitled “Phone Call from Heaven.” It was apparently a recorded improvisation; Pinkston never prepared a written transcription of the routine, nor submitted one for copyright. Now, this presented a heck of a problem under the 1909 Copyright Act. Performances of dramatic works on phonorecords were covered in subsection 1(d); musical works in the following subsection 1(e). The language in 1(d) made it plain that dramatic performance records, just like musical records, were not copies of the texts from which they were taken.

But unlike music, dramatic performance records didn’t have a mechanical royalty system to compensate authors for the use of their writings. To add insult to injury, if one was in the position of Ray Pinkston, who never copyrighted his text, the fact that a phonorecord was not a copy of the text, but did publish it, meant that if you hadn’t yet released your own record, a bootleg was not only not infringement, but it also threw your work into public domain status.

The Leeds v. Gusto court first tried to deal with the problem by determining that phonorecords were copies. It did this by suggesting that the contrary holding was a creature of Judge Gurfein’s opinion. This was wrong. Judge Gurfein had merely reiterated the holding from the Supreme Court’s old White-Smith v. Apollo decision. Knowing it was shaky ground, the Leeds v. Gusto court dumped this line of reasoning and came up with a more imaginative approach: because Pinkston had never written down “Phone Call from Heaven” in any form, even manuscript, his phonorecord was not a copy, it was an original. What was then distributed, presumably, were hundreds of thousands of originals. Ergo, it was in the public domain.

Returning to Mayhew v. Gusto Records, the court said little more than “Leeds v. Gusto established precedent in the Sixth Circuit, so we have to go with it.” In fact, the court was heavily influenced by the writings of Melville Nimmer, who was highly critical of the Rosette decision, and a strong proponent of the concept that the rights-owners of older records should immediately avail themselves of the opportunity under the new 1976 Copyright Act to sweep their compositions into federal copyright status by submitting copies of their records under PA/PUA status. True, the sound recording aspect was blocked from federal copyright by section 301(c), but the composition could be protected, and filing the phonorecord would start the public domain countdown clock ticking. The alternative for the author of a song on a pre-1972 recording was the prospect of losing copyrights in the composition through a determination that every pre-1972 record ever issued had its composition published. “An author [composer] in permitting records of his to be publicly marketed is certainly engaging in a form of exploitation of his work and should therefore be required to seek protection, if at all, only under the limited monopoly concept of the federal Copyright Act,” Nimmer wrote.

To be continued…