Part 21

As noted previously, the process of researching, drafting, debating, then finally replacing the 1909 Copyright Act stretched all the way from 1955 to 1976. In 1967, Barbara Ringer of the Copyright Office wrote the Senate copyright subcommittee that “there is no doubt in my mind that recorded performances represent the ‘writings of an author’ in the Constitutional sense, and are as fully creative and worthy of copyright protection as translations, arrangements or any other class of derivative works.”

However, by the time the second draft of the new legislation was issued in early 1975, the question was no longer if a fee system for the “performance” (sound recording) aspect of phonorecords would be added to the existing composer-based “mechanical rights” system, but merely how much the existing composer-based fees would be adjusted. Congress eventually kicked the can down the road on performance rights to 1978, authorizing a Copyright Office study on the matter.

On the other hand, the situation as to whether sound recordings would be made copyright-eligible was much different. Phonorecords would now comport to the international standards for all copyrightable works—they would be a unified creative product, no longer split between a “composition” and a “sound recording.” Moreover, because formalities such as renewal, filing and marking were now seen as merely “traps for the unwary,” all creative works, not just music, would be automatically copyrighted at the moment they were affixed to a tangible medium. While registering a work made it much easier for an author to prove originality, and often entitled her to seek enhanced damages in court, it was no longer a mandatory precondition to copyright. Finally, the copyright term was changed from a fixed number of years to one based on the author’s life (at the time, life plus 50 years).

To some degree, the “unity” concept allowed Congress to circumvent the problems of performers’ rights. Actually, the trend had started under the 1972 interim revisions. It had allowed an applicant to submit either a phonorecord or sheet music to register for composer’s copyrights. That meant an artist could improvise a tune, record it, and send it in. When it was played on a radio station, he could then receive BMI or SESAC composer’s royalties. (My understanding is that ASCAP still required sheet music copyrighting for several more years.)

Under the new 1976 Act a musician could do the same thing. The only difference was they now had a choice of sending in sheet music and a Form E to register a printed composition, or a cassette tape and Form PA or PAU to register a basic non-dramatic musical work, which protected the composition/sound recording unity. Provided the musician wasn’t playing someone else’s tune, he could list himself as both the composer and performer and receive composer’s royalties for airplay. It wasn’t a great system for musicians, and it was widely abused by producers and managers, who often added themselves as co-composer without the artist’s knowledge, but it was better than the pre-1972 setup.

Two sections of the 1976 Act, taken together, justify a close look. These are section 301 and section 303. Section 301 started life as a fairly standard “boilerplate” preemption provision that said that if the copyright code covered a given subject, no state law could conflict with it. Section 303 was a “sweeping” provision intended to bring all older works under the umbrella of federal copyright, giving them whatever copyright duration they would be eligible for if they came into being on the day the Act was enacted, or if all else failed, until the end of 2027 (later extended to 2047). After eleven years of draft bills and mark-ups, section 301 was changed at the last minute to do some fairly weird legal things affecting only one category of works – pre-1972 sound recordings.

To be continued…

The interim 1972 Copyright Revision Act also touched off one of the messier inter-judicial disputes in the history of copyright law, the so-called “mechanical reproduction” fee controversy. The 1972 revisions retained the original 1909 compulsory licensing fee system. You will recall that under the 1909 Copyright Act, after the first release of a composition on a phonorecord or piano roll, a composer had to let all subsequent users license the song for a similar use provided they paid two cents per copy. Everyone assumed that “similar use” meant you had to hire your own musicians and make your own version of the song, but Melville Nimmer, the great copyright authority, had for years argued that the plain language of the Act allowed one to duplicate the original phonorecord and sell copies of it with impunity, provided that the copier duly filed notice and paid his fees.

He argued this because: 1) the law left the sound recording aspect federally unprotected; 2) copying, being an identical use, was about as “similar” as one could get; and 3) the law was intended to protect the interest of composers, not artists, and it made no difference to the composer if he received his two cents a copy from Victor or Cheapco Records. While a copier always faced the threat of prosecution under a state law, such as California statute 653h in the Goldstein Supreme Court case, a copier who scrupulously did his paperwork and paid his royalties was, under Nimmer’s theory, beyond the reach of federal law.

There were a plethora of lawsuits between 1972 and 1975 that fit these facts. They ultimately resolved down to four federal circuit court cases originating in New Jersey, Alabama, California, and Oklahoma. In every instance the trial court agreed with Nimmer. In all four the circuit court reversed, finding infringement had occurred, and in each there was a (usually vociferous) dissent. The majority’s reasoning in all four was roughly the same, and was based in the 1912 case, Aeolian v. Royal Music, the one in which Royal had taken out a mechanical reproduction license with composer, then used Aeolian’s piano roll of the same song (they also had a license) to make their punching matrix rather than prepare one of their own from scratch. Back then, the Supreme Court held that Aeolian’s licensee-licensor relationship with the composer meant that harming Aeolian was tantamount to harming the composer. The implication was that licensing a composition protected the exclusivity of the licensee’s sound recording.

The dissents all pointed to the 1972 copyright revisions, which had started to allow the separate registration of sound recordings partially to prevent such abuse. The legislative report for the 1972 bill noted that “If unauthorized producers pay the statutory mechanical royalty required by the Copyright Act for the use of copyrighted music there is no Federal remedy currently available,” and that if record duplicators “satisfy the claim of the owner of the musical copyright they can and do engage in widespread unauthorized reproduction of phonograph and tapes without violating Federal copyright law.” But then Congress had changed the law only for post-1972 records. Thus, the dissenters argued, if Congress elected not to change the status of the older works, that must indicate it wanted to rely on state-law enforcement. Frankly, it was a strong argument.

The 1972 revisions also changed another provision. In addition to the existing civil penalties for copyright infringement, Congress added the possibility of criminal prosecution for “willful infringement for profit.” A month after the last of the four mechanical royalty cases concluded, the Department of Justice announced that it would began prosecuting music piracy, including pre-1972 recordings. Between 1975 and 1985, the DOJ went after music duplicators who “abused” their compulsory reproduction licenses by duplicating sound recordings, even though duplicating pre-1972 recordings didn’t violate federal law. In 1985 the Department discontinued this policy for pre-1972 recordings, determining that it had insufficient jurisdiction.

To be continued…

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…