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…

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…

Part 27

 The earthquake came between 1995-2000 in four major cases: La Cienega Music v. Z.Z. Top (California, 1995); Mayhew v. Gusto Records (Tennessee, 1997); Mayhew v. Allsup (Tennessee, 1999); and ABKO Music v. LaVerne (California, 2000). All dealt with a single question: does issuing a phonorecord “publish” its composition?

In La Cienega Music v. Z.Z. Top, John Lee Hooker and Bernard Besman wrote and recorded “Boogie Chillen” in 1948. Hooker assigned his half of the composition to Besman, who registered it as sheet music in 1967 on behalf of La Cienega Music. They wrote a second version of “Boogie Chillen” in 1950. Hooker also assigned this version to Besman, who registered it as sheet music in 1970. A third version of the song was recorded by Hooker on an album, Canned Heat, in 1970. It was authorized by La Cienega, and was registered as a unitary musical work (PA/PAU) in 1992 by Besman and Hooker. In 1973 Z.Z. Top released a best-selling song called “La Grange.” In subsequent litigation, Z.Z. Top’s primary defense was that “Boogie Chillen” was in the public domain (i.e. they largely admitted that they copied parts of “Boogie Chillen”).

Z.Z. Top claimed the three versions of the song were published in 1948, 1950 and 1970, the dates they were issued to the public. La Cienega claimed they were published in 1967, 1970 and 1992, the dates when registration was secured.

The court explicitly declined to follow the Rosette v. Rainbow approach, which would have adopted the La Cienega dates. The fear of the court was that the Rosette approach would have given the owner of a pre-1972 sound recording an incentive to delay registering a work until it was discovered that someone was profitably infringing it. Because the copyright duration is 28 years, a forthright owner who registered a work got 28 years of coverage, but a disingenuous owner got unlimited coverage, at least until an successful infringer was discovered. The owner then registered, starting the 28-year clock. A song like “Boogie Chillen” sat in the deep freeze after its initial success, only to have the licensing clock start after 25 years when Z.Z. Top made it a chart-buster in 1973. Had the song been forthrightly copyrighted in 1948, the year it was written and first recorded, its copyright would have expired in 1976, so La Cienega could have received as few as three year’s royalties from Z.Z. Top.

Judge Fernandez, in a dissent, tried to salvage the Rosette system, which he called “quite logical, indeed correct.” Acknowledging that there was a potential problem of owners holding their compositions back from copyright in the hopes that some lucrative infringer may stumble onto the scene, he suggested that the Rosette system be slightly modified to prevent registration beyond 28 years after the first date of creation or publication. “Thus,” he concluded, “the author who does not register in a timely fashion cannot artfully extend the time during which he can exploit his work.”

To be continued…