Subscribe to Blog via Email
For those unfamiliar with common-law copyright and sound recordings, it might be helpful to read my post Of Sheep and Goats summarizing the issues as context for this post, although I do go over the basics here as well.
Almost five years ago (how the time flies) I was reading about the then-new cases where Flo & Eddie of the Turtles were suing SiriusXM and Pandora for infringement of their common-law copyrights. I distinctly remember going to bed and then getting up with a bit of a start, such is the drama of my life – I’d seen this before, and I didn’t think many others had. In particular, while writing in my 2007 article The Twilight of the Opera Pirates, I remember reading various cases involving the operatic duo of Gilbert & Sullivan, including the Mikado and Iolanthe cases. Both cases involved attempts by the British owners of the work to prevent American theaters from performing their in-house orchestrations of these operas, which had been orchestrated from the published piano reduction of the opera (designed to be performed at home). At the time I’d focused on the success of the strategy, but looking back I realized something else – everyone seemed to agree that if the American theaters had used the unpublished orchestral score directly, they would be infringing the common-law copyright of the composer, even though (a) public performance of music was not infringing until over a decade later, and (b) the composer was British, and foreigners would not get copyright in America until 1891.
I dove deeper into the issue, and last month the Cincinnati Law Review published my article about common-law copyright for sound recordings, called “Common-Law Copyright.” I’ve been talking about this piece for a while now, and this will be the last such post, because it’s been published, and the final PDF is online. My initial goal was to find more such examples from older cases, and I believe I demonstrated conclusively that common-law copyright has always included performance rights, and that such performance rights are not dependent on federal statute granting performance rights. However, as I was writing I started to wonder whether performance rights and duration were the only points of difference between statutory and common-law copyright.
And that is why I gave my article the title “Common-Law Copyright,” instead of a title more explicitly linking it to sound recordings. Because we’ve really failed to think through the doctrinal consequences of using common-law copyright to protect older sound recordings, or even really what common-law copyright is. In my article I believe I document pretty clearly just how different common-law copyright is from statutory copyright, and how we’ve fairly to take it seriously as a doctrine and ended up with a muddle of unpredictability and confusion.
So, what is common-law copyright? In a nutshell, common-law copyright is the perpetual right of control over unpublished works – both pre-publication manuscripts and documents meant to be kept private, like letters and diaries.1 Copyright law both common-law and federal provides that if a work is published then it loses common-law protection In the 1930s through the 1950s, a number of court cases held that sound recordings are not published under state laws, even if publicly sold, and thus could be protected by common-law. In 1972 sound recordings were brought within federal law and state-law protection was rendered largely moot, but this change only applied to sound recordings made on February 15, 1972 or later, leading to the current predicament regarding “pre-72” sound recordings.
In the middle of the 20th century, it wasn’t entirely clear if the doctrine was actually common-law copyright or a different sui generis protection – Courts generally didn’t use the phrase “common-law copyright,” and Nimmer – the major treatise on copyright at the time (and one of the major ones still) said in the 1973 edition that the protection for sound recordings is not common-law copyright. However, in recent years Courts, especially in New York, have settled on the protection for pre-72 sound recordings being under common-law copyright.
Common-law copyright was abolished except for pre-72 sound recordings by the 1976 Copyright Act, meaning that Courts generally only encounter common-law copyright issues in this narrow context now. Courts have thus tended to treat common-law copyright for pre-72 sound recordings as being largely identical to statutory copyright. I believe this is a mistake, and if we’re going to use common-law copyright for pre-72 sound recordings, we should take the doctrine seriously and understand that it is substantially broader from statutory copyright.
The article covers a lot of ground, and I hope folks in the various affected fields find it helpful. The Music Modernization Act, if passed, will require payment of royalties for digital audio transmission of pre-72 sound recordings, implicitly but not explicitly recognizing common-law rights in pre-72 sound recordings. Whether we choose to take common-law copyright seriously going forward is up to us.
I try to include something archival with each post, so here‘s the casefile from Gee v. CBS on appeal to the 3rd Circuit Court of Appeals from the decision of the Eastern District of Pennsylvania, on the question of whether common-law copyright in sound recordings made by Bessie Smith is subject to adverse possession. The very short unpublished opinion of the 3rd Circuit is also included.
Earlier Posts, which can also be seen in this blog’s Common-Law Copyright tag:
One interesting thing about case reporters is that even though the text of reported cases themselves been denied copyright protection by the courts, going all the way back to 1834 in Wheaton v. Peters, case reports have been consistently registered for copyright. In the latter part of the 1980s, Mead (the service now known as Lexis) introduced star pagination, allowing a reader to identify when a new page began in the printed reporter, which was published by West. West Publishing sued, and in 1986 the 8th Circuit held that West had shown a likelihood of success that the Mead star pagination feature infringed their copyrights in page numbers, in other words the selection and arrangement of the case text.
In 1988 the parties settled, but concerns lingered about the applicability of copyright to law reporters and other legal compilations. This was amplified by the 1991 Supreme Court decision in Feist v. Rural Telephone, which cast the holding of the 8th Circuit in the Mead case into some doubt. In Congress a bill was introduced to make clear that page numbers in legal compilations could not be protected by copyright. Thus a Congressional hearing was held on May 14th, 1992, before a subcommittee of the House Judiciary Committee, to discuss the issue of whether copyright should protect such things as page numbers. The text of this hearing has long been available, but I think it’s much more interesting on video, and in some cases it illuminates the content of the hearing as well. I’ve included the video below.
Robert Fulton is generally remembered as the inventor of the steamboat. There is some controversy over his debts to previous inventors, but Fulton was the one able to develop a steamboat which was commercially successful, and which led to the rise of steamboat transit. I hadn’t thought about it much, but his patent in his steamboat is one of the key documents in the history of American invention and technology. That changed a bit ago when Adam Mossoff tweeted this out about how the patents Robert Fulton took out in his famous steamboat were lost, and I couldn’t just leave it be.
On this date in #innovation history: Robert Fulton gets a second #patent in 1811 for his #invention of first commercially practical steamboat (unfortunately, his patent was lost in the fire that consumed the US Patent Office in 1836) @uspto #PatentsMatter #IndustrialRevolution pic.twitter.com/Q6fs79kQRl
— Adam Mossoff (@AdamMossoff) February 9, 2018
Perhaps nothing gets my attention more than saying that something is “lost,” so I had to look into it. It turns out that the patents are less lost than has commonly been assumed. Read More
Two years ago last month, I was reading the trial court opinion from White-Smith v. Apollo from 1905 (the player piano case), and I noticed a cite to a 1878 Supreme Court case I hadn’t heard of before, Perris v. Hexamer. I gave the decision a read and found that it was about the copyrightability – or rather lack of copyrightability – of using specific colors and shapes to denote features on a map, where the alleged infringing map was of a different city (and thus obviously not copied). At this time I was about to close out a year as the Abraham L. Kaminstein Scholar in Residence at the U.S. Copyright Office, and I was a bit loathe to admit that I’d never even heard of a Supreme Court case on copyrightability. So, instead, I asked the coterie of IP professors I’m friends with on Facebook “why don’t people talk about Perris v. Hexamer more?” (the story continues after the jump)
Below is a video recorded at the U.S. Copyright Office in early 1987, at an event for staff, where Waldo Moore, who had been at the Office since 1951, provided some history of the Copyright Office, and discussed some of the individuals who had held the position of Register of Copyrights. Moore retired the year before he gave this talk, and William Patry has a nice piece about him on his now-defunct blog. Much of the material Moore includes in his talk has, to my knowledge, not been published.
I will caution, for those seeking details on recent events, the Moore is quite circumspect about events from 1970 on, preferring to speak about earlier eras. Looming in the background of the talk was George Cary’s appointment as Register in 1971, which led Barbara Ringer to sue and that appointment to be vacated, at which point George Cary retired and Barbara Ringer was named Register. George Cary is specifically mentioned as being in the audience for this talk, which would make discussion of the controversy impolitic (it probably would have been even without him in the room).
“Some sheep are being treated like goats and the resulting mélange can satisfy no one except those who happen to profit from the confusion.”
Benjamin Kaplan, Harvard Law Professor, on sound recording copyright, from Publication in Copyright Law: The Question of Phonograph Records, 103 U. Penn. L. Rev. 469 (1955).
To be clear, what follows is solely my opinion, and should not be attributed to any institution, public or private. Much to my chagrin I received no support for writing this post, directly or indirectly.
There’s been a lot of talk lately about the CLASSICS Act, now incorporated into the Music Modernization Act which passed the House and is now pending before the Senate. There’s been a number of posts arguing whether it’s an extension of copyright to 144 years, or a clarification of the status quo. I’ve personally spent a while on the issue of pre-1972 sound recordings and copyright, and my article Common-Law Copyright should be coming out soon, so I figured it might be helpful to explain a bit more why I tend to think this bill is largely a clarification and federalization of the status quo, by way of providing the background for pre-72 sound recordings. This is fairly condensed, and I’d urge folks who want the whole story to read my article. Those interested in the subject should also look at the Copyright Office’s Report from 2011 on pre-1972 sound recordings, as well as its related documents.
When I was at the Copyright Office as Abraham L. Kaminstein Scholar in Residence, I happened to find the video below. Andy Johnson-Laird made it for the U.S. Copyright Office at some point shortly after the Mosaic web browser (the first one) was developed and the web began to take off, I’m estimating either in late 1993 or or early 1994. As far as I can tell it’s the first video demonstrating browsing the web. Andy Johnson-Laird has been kind of enough to give permission to share it further, and the Library of Congress Motion Picture Division gets the credit for transferring the tape to digital.
I know I shared this on Twitter a week or two ago, but not everyone follows me there, and this is too cool not to share again. This is anticipated to be the first of a series.
The Music Modernization Act just passed the House as I’m writing this, and it seemed apropos to look at the origins of mechanical licensing in the 1909 Copyright Act. The story has been told before (although not in a dedicated article or book), but I’ve found a number of aspects of the story that I believe have been largely forgotten, along with a few documents that I’ve scanned which are pretty cool to see. Accordingly I’ve compressed parts of the narrative and expanded the parts where I have something new to add. One of these days I’d like to write a book on the 1909 Act, or at least put this stuff into an article
Music is no longer written on piano rolls and our laws shouldn’t be based on that technology any longer either. The #MusicModernizationAct brings our music laws into the 21st Century digital era.
— Bob Goodlatte (@RepGoodlatte) April 11, 2018
The first sound recordings that could be played back were made in the 1870s, and the technology was commercialized effectively beginning in the 1890s. In these early days the legal aspects of the various early sound reproduction systems were generally lumped in with another technology that developed at around the same time, the player piano,1 and in 1888 Harry Kennedy brought suit in the U.S. Circuit Court in Massachusetts, arguing that the inventor John McTammany had prepared Kennedy’s song Cradle’s Empty, Baby’s Gone, copyrighted in 1880, on a piano roll for use in a player piano (the song is a serious downer, fair warning). The casefile from the National Archives (which I originally shared last year) shows that in 1882 the Automatic Music Paper Company paid Kennedy a license fee, and published an authorized piano roll indicating that the song was used with permission. In fact, although the reported decision does not make it clear, the Automatic Music Paper Company was Kennedy’s co-plaintiff in the case.2 However, in a brief decision the Court held that programming a paper reel with punches for use in a player piano did not infringe the copyright of the musical composition which was played back from that paper reel. The matter was appealed to the U.S. Supreme Court, but in 1892 the Supreme Court dismissed the case without an opinion. 145 U.S. 643 (OT 1891 No. 168)
It would be another decade before another reported decision on mechanical reproduction, but at the beginning of the twentieth century one George Rosey was accused of selling sound recordings of two songs on wax cylinders – “Take Back Your Gold” and “Whisper Your Mother’s Name.” I’ve scanned the appellate case file of the DC Court of Appeals, and the briefs show the conflicting positions taken by the parties to the case, where Rosey based his argument on prior caselaw – the 1888 Kennedy decision and the then-recent English case of Boosey v.Whight, 1 Ch. 836 (1899) and 1 Ch. 122 (1900). By contrast the music publishers of Joseph W. Stern and Edward B. Marks looked to broad principles of copyright to assert that recording a copyrighted song constituted infringement. In 1901 the DC Court of Appeals (now the DC Circuit Court of Appeals) held similarly regarding sound recordings, finding that a sound recording did not infringe the copyright in a musical composition.
As I mentioned (I’m not sure others have noticed this), as early as 1882 the Automatic Music Paper Company was paying royalties to songwriters for mechanical reproduction, in spite of the lack of clear legal precedent saying they had to. Later in that decade the Automatic Music Paper Company merged with the Mechanical Orguinette Company, and the resultant company would be named the Aeolian Company. Aeolian would continue its predecessors practice of compensating songwriters for use of their songs. Its motivation for starting this practice is unknown (at least to me – feel free to educate me in the comments) – was it alruism and a sense of duty, did they believe they had a legal obligation, or, as critics increasingly charged, did they intend to establish such a right once they already held licenses to most popular music, setting themselves up to dominate the player piano market using copyright?
When the White-Smith Music Publishing Company sued the Apollo Company to assert that Apollo had sold piano rolls that infringed their copyright in the musical compositions, it was generally understood that Aeolian was actually behind the litigation.3 The case slowly worked its way through the Courts, and while this was happening, in 1905, the gears began turning on a major revision to the copyright laws. In June of 1906 Congress held hearings, and the transcript shows that Aeolian’s opponents showed up in force to argue that Aeolian was trying to create a monopoly in the player piano using its licenses to musical compositions. Aeolian was not represented at these hearings, but at their behest a young Nathan Burkan published a pamphlet with the unwieldy title of The Charge That The Passage Of The Copyright Bill, Senate Bill 6330, Will Create A Monopoly In The Manufacture Of Automatic Musical Devices Is False. The pamphlet on the one hand acknowledged that Aeolian had, in 1902, made contracts with many of the major music publishers for mechanical rights, assuming a court found such rights existed. Aeolian also agreed to fund the litigation, and according to Burkan they had already expended $50,000 in legal fees, the equivalent of over $1.2 million today. However, they argued that Aeolian had not secured contracts for all popular music, and further that such contracts explicitly did not include rights for sound recordings, which were likewise ascendant. Nonetheless, the response does leave a certain lingering impression that Aeolian acknowledged that they would have at least a dominant position in the player piano market if a law giving the owners of copyrights in musical compositions an exclusive right of mechanical reproduction.
After the case arrived before the Supreme Court, but before argument, the defendants moved to dismiss the case, arguing that the amount in controversy was not significant enough for the Court to have jurisdiction. This motion is found at the end of the case file held by the National Archives, and has not to my knowledge been previously discussed. It’s not clear why Apollo would move to dismiss at this point if the amount in controversy was so minor anyway – they’d come so far, one would think they would want to be vindicated. One possibility is that, if the case was a test case with a willing defendant, Aeolian grew concerned that the winds of the case were blowing against them, and tried to get out before the Supreme Court issued a decision.
Sure enough, in 1908 the Supreme Court affirmed the earlier decisions regarding mechanical reproduction in White-Smith v. Apollo, and held that the 1870 copyright law did not recognize mechanical reproductions as “copies.” However, the Court made clear that Congress could step in and remedy this inequity, and in response the 1909 Copyright Act provided compulsory licensing provisions for “mechanical” reproductions of copyrighted musical compositions, including sound recordings. It was widely understood that the compulsory nature of the licensing was meant to prevent another entity like Aeolian from dominating the market using exclusive licenses.
Roughly ten years later, the Federal Trade Comission investigated Aeolian for various antitrust claims, including price-fixing, leading to a cease and desist order (at pg. 124). However, Aeolian survived far longer, and long after player pianos had left the mainstream, going through a series of mergers and finally declaring bankruptcy in 1985
This post brings together two separate but related topics – a relatively unknown resource about the Supreme Court, and light it shines on what I think were the main schools of thought on copyright in the late nineteenth century. Read on for more, including original scans of archival material.