Part 26

When Congress could not reach an agreement on what to do about performer’s rights in the 1976 Copyright Act it threw its hands in the air and ordered the Copyright Office to report back in 1978. They dutifully turned in a 2000-page compendium of studies and testimony that was equally inconclusive. The issue went nowhere until the digital age forced the hand of record companies and digital service providers in the  Digital Performance Right in Sound Act of 1995 and the 2002 Copyright Royalty and Reform Act. The 1995 legislation mandated that 2.5 percent of the funds received by the rights-holders of sound recordings be set aside for a musicians’ fund administered by the American Federation of Musicians, and 45 percent was to go to the artists actually featured on the musical work. Pre-1972 phonorecords could not be included in this system, of course, because under section 301(c) of the 1976 Act they were specifically barred from federal copyright status.

The copyright code amendments enacted since then have created a digital license fee for recorded music, but for pre-1972 phonorecords the record companies have elected not to take advantage of it, preferring instead to see that the older records remain outside of federal copyright status. Although there is an increasing amount of grumbling within the ranks of RIAA, the Recording Industry Association of America, the industry’s official position continues to be that common-law copyright is preferable to the advantages federal copyright offers through the new digital use fees. “They are leaving an awful lot of money sitting on the table based on some really vague reasons,” remarked one ARSC member recently involved with the Library of Congress’s National Recording Preservation Plan.

One of the first court cases interpreting the 1976 Copyright Act occurred in 1986 in Jones v. Virgin Records, a dispute over the well-known song “Handy Man,” a three-time Billboard top 25 single. Composers Jimmy Jones and Otis Blackwell, under the name Shalimar Music Corporation, registered “Handy Man” as sheet music in 1959. It was published on paper in 1964. Jones recorded it in 1960, Del Shannon in 1964, James Taylor in 1977, and George O’Dowd (Boy George) in 1983. Jones and Blackwell registered the sound recording in August 1984 using a PA/PAU registration for a basic music work and submitted a cassette tape.

Jones and Blackwell alleged that O’Dowd copied elements of “Handy Man” that were unique to the 1960 phonorecord version (but were not in the 1959 sheet music version). O’Dowd countered that the 1960 version was in the public domain through publication. Judge Lowe dusted off the Rosette v. Rainbow Records decision and updated it to make it work in the post-1976 Copyright Act environment, the only known example where this was done.

The court rejected O’Dowd’s argument, that by issuing the 1960 recording of “Handy Man”, Jones and Blackwell published the composition. The court rejected this argument on the grounds that a phonorecord could not be a copy of the composition it contained. Instead, the court folded the 1976 Copyright Act into the Rosette decision and used the 1984 date, in which Jones and Blackwell registered the song as a “basic musical work” (PA/PAU), as the earliest date in which they could seek damages. The court then applied Judge Gurfein’s “split the baby” solution stating that distributing pre-1972 records didn’t publish them, and thus didn’t divest them of whatever copyrights they held. Until the owner sought copyright, he could not stop infringers nor seek damages.

The modernized interpretation of the formula was that issuing the 1960 version of “Handy Man” as a record didn’t publish it, but when Jones and Blackwell filed their PA/PAU registration on the phonorecord in 1984, they then became entitled to seek royalties and enforce penalties for infringement. Had they filed a Form E and submitted sheet music the same thing would have happened, but after the 1976 Act there was no reason to prefer sheet music over the submittal of a cassette tape and a PA/PAU form—the latter protected both the composition and the specific sound recording as a unity.

To be continued…

Part 25

And finally, the third sentence reads:

Notwithstanding the provisions of section 303, no sound recording fixed before February 15, 1972 shall be subject to copyright under this title before, on or after February 15, 2047.

This sentence does one, and maybe two, things. The first is obvious: had it not been inserted, pre-1972 phonorecords would have been swept up into federal copyright by section 303 along with all older, pre-1978 writings. Now, they will remain in the same limbo they have been in since the 1909 Copyright Act.

But is there a second effect? For paragraph (a) to be effective, a work “must come within the subject matter of copyright as specified by sections 102 and 103.” This sentence says that “no sound recording . . . shall be subject to copyright . . . after February 15, 2047.” Is it possible that this third sentence removes pre-1972 phonorecords from “the subject matter of copyright” and therefore makes the (a) paragraph inapplicable? If so, the net effect would be that on February 15, 2047 [now, 2067], absolutely nothing changes. Pre-1972 phonorecords would remain in state-law copyright in perpetuity.

My conclusion is “it’s possible, but probably not.” The 1976 Copyright Act legislative commentary on subsection 301(a) notes that “as long as a work fits within one of the general subject matter categories of section 102 and 103, the bill prevents the States from protecting it, even if it fails to achieve Federal copyright.” There are also a small, but growing, number of cases (none music-related) in which a state misappropriation law was found to be preempted because the general area was covered under section 102, even through the specific object was not copyrightable.

This sounds bizarre, but it is actually necessary. Let’s take an example that I have used before in my history of discographies, the copying of pure facts. Straight facts cannot be copyrighted. Provided that telephone company “B” doesn’t just photocopy pages out of telephone company “A”s phone books, company B can extract the names and numbers out of A’s phone book for its own use, because pure facts are, in themselves, uncopyrightable due to lack of originality.

On the other hand, phone books as a whole are “original works of authorship fixed in a tangible medium,” and thus fall within the subject matter covered by section 102. Therefore, a state cannot step into the void left by federal law and prohibit the manual extraction of factual data from phone books. It’s easy to think up lots of other examples of a state protecting a copyrighted item that has fallen into the public domain or that is insufficiently original to warrant federal copyright (a big problem with toys and games) in order to protect a home-grown industry. In fact, the fear of many copyright observers (including me) is that Judge Graffeo’s decision in Capitol v. Naxos IV is a preemptive attempt to get around the problem of federal non-copyrightability to create an economic recruitment tool for music and software firms: come to the Empire State to do business and we’ll cover your products against copying in a way that the federal copyright code can’t reach. One wonders what would have happened if Naxos had been based in New York City and not Nashville.

To be continued…

Part 24

The second sentence reads:

The preemptive provisions of subsection (a) shall apply to any such rights and remedies pertaining to any cause of action arising from undertakings commenced on or after February, 15, 2047.

This implies that the provisions of sentence one sunset on February, 2047 [now 2067]. But read it again: it does not do this. It does, on the other hand, “switch on” the preemptive powers of subsection (a). At the same time, the very broad preemption in sentence one does “switch off” (under its own language), but only to the minimum extent necessary to accommodate the preemptive powers of subsection (a). It is silent as to whether all the exclusive rights outside the general scope of copyright as defined by section 106 still remain. Two important sections of the Copyright Act that define rights in sound recordings are not located in section 106: section 114 (“scope of exclusive rights in sound recordings”) and section 115 (“compulsory license for making and distributing phonorecords”). These are discussed below.        

The overall effect is that those state-law powers equal to section 106 (“subject matter of copyright in general”) protections will be preempted beginning in 2047 [now, 2067]. Sound recording are explicitly listed among those things that fall within the “subject of copyright as specified by sections 102 and 103.”

Also uncertain is sentence two’s silence as to paragraph 301(b). Is it also invoked? It was specifically added at the time the 1976 Copyright Act was drafted to allow states to continue to prosecute “palming off” offenses such as deceptive trade practices and false labeling. The failure to “switch it on” at the same time as subsection (a) would seem to imply that the general intent at one time was originally to preempt state activities absolutely – that is, to create a quasi-public domain status for pre-1972 records. (Technically, they cannot be moved into the public domain because they never had “in copyright” status.)

But here is where we bump up against the conflict between the first sentence that blocks the application of federal law against a corresponding state law, regardless of where within in the Copyright Act the law may be found, and the second sentence that only relaxes that block, allowing federal preemption, if a state law corresponds to a copyright power in section 106. But the two important sections, section 114, which limits a sound recording owner’s normal copyrights in favor of radio broadcasters, and section 115, which limits a composer’s rights against duplicators, substituting instead the mechanical royalties provisions, creates a conflict. Both are outside of section 106! Does that mean that a state will still have to power to invoke common-law or statutory-law equivalents of sections 114 or 115 after 2067? If so, the result would be a long way from “the equivalent of public domain.”

To be continued…