By Bruce D. Epperson

After the failure of the Articles of Confederation, the United States government commenced operations under its new Constitution in April,1788. Article 1, Section 8, subsection 8 of the Constitution (the “Progress Clause”), authorized congress “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Note that the Progress Clause did not specify a “copyright,” merely a “right,” but it is clear that the participants to the constitutional convention were thinking in terms of English-style copyright. In Federalist #43 James Madison, in explaining the Progress Clause, stated that “The utility of it will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.” (Whether, in making reference to “a right of common law,” he was arguing for the two-layered “cupcake” theory of underlying common-law copyright that the House of Lords voted against in 1774 has long been debated. Suffice it to say that the majority view is “probably not.”)

One of the first acts of the new congress in 1790 was to enact a copyright law. Printed works were eligible for a British-style, 14/14-year term. An author had to register the title of the book, issue a newspaper notice within two months of publication, and deposit a copy of the printed book within six months. An American rerun of Donaldson v. Beckett ensued in 1834 in Wheaton v. Peters. A publisher forgot to fulfill some of the formalities of the copyright act, and had some of his books pirated. Acknowledging that he had forgotten to fulfill all the requirements, the publisher pled that he should nevertheless be entitled to some kind of common-law copyright. With no homegrown law yet to follow, a majority of the Supreme Court used Donaldson, interpreting it to mean that once a government copyright scheme has been put in place, it is the only copyright law that remains—common-law copyright is cut off.

But Justice Thompson, in a dissent, argued that in their vote, the House of Lords had meant only that the Statute of Anne cut off common-law copyrights, not government copyright laws in general. The Statute of Anne never applied to either the colonial predecessor of Pennsylvania or the current Commonwealth.  Therefore, while there may not be a common-law copyright under federal law after publication, this did not apply to Pennsylvania. The “cupcake” idea was back, only in a new, federalized form. Justice Thompson outlined an alternative vision of copyright, one in which state-law powers formed the bedrock of an all-embracing, perpetual, copyright regime, with federal statutory copyright a thin frosting slathered on top. After a few years, the federal copyright may melt away, but the state-law copyright always remains. Thompson’s argument didn’t carry the day in 1834, but a hundred and seventy years later, it became one of the foundations to Judge Graffeo’s opinion in Capitol Records v. Naxos IV.

To be continued…

By Bruce D. Epperson

Printing began in England about 1471. In 1557, the Stationer’s Company received a royal charter from Queen Mary. The company performed two important functions. First, it policed its members on behalf of the state, blocking seditious or blasphemous material. Second, it maintained the interests of its own members by prohibiting the poaching of texts. Because setting type, printing sheets, and binding them were so expensive, the Stationer’s Company (essentially a guild) protected its membership through a process called registration. The key act was when a member-printer submitted one copy of the book’s manuscript to be registered with the company. In the event two similar works appeared in bookstores, the one with the earlier registration was presumed to be the true copy until proved otherwise. The procedure was intended to protect printers, not authors, who had few if any rights. This state of affairs was formalized by Parliament in the Press Act of 1662.

But the Press Act fell victim to the turmoil of the English civil war and subsequent restoration. William and Mary allowed it to lapse in 1695. It was replaced with the Statute of Anne of 1710, which established a government-granted copyright of 14 years to the publisher, with a reversion to the author for another fourteen. (Previously published works received a single 21-year term.) Unlike the protections afforded through registration at the Stationer’s Company, government copyright extended only to published works. To receive protection, the author or publisher had to submit a printed copy along with the copyright application. Almost immediately, two questions started to arise: what was the status of a book before it was published, and what was its status after the government copyright lapsed? In a 1769 case, Miller v. Taylor, the Court of King’s Bench determined that a book or other literary work belongs to the author through the common law, and thus for another to plagiarize it before publication was a wrongful act for which the author could seek redress. Strongly implied, but not quite explicitly stated, was the converse of this: once a work’s government-granted copyright expired, it did not become a “gift to the public,” but simply reverted to its underlying, perpetual common-law copyright status.

This latter point wasn’t firmly addressed until February 4, 1774, when eleven members of the House of Lords, sitting as Britain’s supreme court of appeals, heard Donaldson v. Beckett.  Following parliamentary practice, the matters were framed as specific questions of law. First, does an author have a common-law right in his literary work prior to publication? Yes, 8-3. Second, assuming that the Statute of Anne didn’t exist, would the act of publication in itself divest the author of this common-law copyright? No, 7-4. Third, does the copyright given under the Statute of Anne cut off all common-law copyrights, limiting remedies to those terms and conditions permitted in the statute once government protection is extended? Yes, 6-5.

In essence, the Lords determined that statutory copyright was not something added atop common-law copyright, like frosting on a cupcake; instead, it cut off and replaced common-law copyright. When statutory copyright ended, either because of the expiration of term or because the author failed to follow proper registration or renewal procedure, the literary work fell into the public domain, and in the words of one of the Miller v. Taylor judges, “is virtually and necessarily a gift to the public.” Overlooked (because under the circumstances then existing, it was superfluous) was the second opinion: where no statutory copyright regime existed, the act of publication was insufficient, in itself, to revoke common-law copyrights and throw a work into the public domain.

To be continued…

By Bruce D. Epperson

Starting this month, and continuing in several installments, we will examine American copyright law as applied to recorded music, and how it got to where it is. The aim will be to use a plain-language, non-legalese approach that is largely historical and that uses real-people, places, and things as illustrative examples. However, because many of these “real-world” situations were first recorded in the courts in the United States and Britain, we will frequently be talking about legal cases. However, I intend, as far as possible, to ignore the legal technicalities and small print that lawyers love in favor of a big picture. I also will take a middle-of-the road approach politically. I am neither a fan of most of the “creative commons” approaches that argue that information and cultural works should inherently belong to everyone, and thus copyright protections should be as small as possible, nor do I believe that granting near-absolute and perpetual copyright terms, especially to assignees other than the actual creator, is vital to maintaining a thriving entertainment industry. Rights in property must be balanced between individual autonomy and social needs, and the fundamental principles guiding this balance, in my opinion, do not change simply because we are discussing intellectual, not tangible, property.

We will use as our springboard the court case of Capitol Records v. Naxos of America, Inc. It was actually a series of five separate decisions published between 2003 and 2005. The critical opinion was the one issued by New York State Judge Graffeo in April 2005 in Capitol v. Naxos IV. In 1996, Capitol received a license from the British firm EMI to produce and distribute in the U.S. classical recordings, including some by Yehudi Menuhin, Edwin Fisher and Pablo Casals, that EMI’s predecessor, Gramophone, had issued in England in the 1930s. The U.K. copyright of these Gramophone/EMI records had expired prior to 1986. In 1999 Naxos, believing they were also in the public domain in the U.S., produced and sold some of these recordings on CD by running copies of the original Gramophone shellac records through modern playback machines augmented with digital enhancement and noise reduction software.

It was soon established by a federal court and the parties themselves that no U.S. federal copyright violation had occurred, but a federal appeals court referred the action to the New York state court system for clarification as to whether the laws of that state applied. The New York Court of Appeals (its supreme court) determined that because the records were made before 1972, when the U.S. began to cover sound recordings in its copyright law, Naxos did violate New York state copyright law, even though the English copyright had expired.

To reach his decision, Judge Graffeo reached all the way back to the English Statute of Anne of 1710, and so shall we. Many lawyers who have read the Capitol v. Naxos IV case have accused Judge Graffeo of bad faith because he cited U.S. case law that veered back-and-forth between cases that dealt with musical compositions, which have been copyrightable since 1831, and sound recordings—the aural material contained on a single record or tape–which have only been copyright-eligible since February 15, 1972. They correctly point out that the chain of legal reasoning—the so-called precedent—is entirely different in each case. They maintain that the two cannot be woven together to form a single united argument. We will go into the background of many of these cases, which extend from Fred Waring and His Orchestra to Z.Z. Top, to show that there is a consistency—but only if Judge Graffeo was making an argument for something very different from that in the plain language of his decision. Between now and then, we have a very winding, but fascinating, road ahead of us.

To be continued…