Tracking Accuracy in Copyright Records – A Case Study

A few weeks ago, Joseph Felcone emailed me to ask about helping with a mystery in the copyright records he’d been investigating, and asked if I’d help.  For folks not in the know, Joe is an expert on New Jersey books and publishing, and the author of a number of wonderful books on the subject – including a recent catalog of all New Jersey copyright registrations from 1791-1870, which all fine libraries should own (if unsure if your library is truly fine, order a copy from Joe to cement such status).

Joe was trying to determine information about A Member of Congress. A Novel. By William Wentworth (New York: G. W. Dillingham, 1898).  He’d already figured out a fair bit of what I discuss below, but I think the process of figuring out the information is informative, because it tells us about how inaccuracy and uncertainty can creep into the copyright records.  The story continues below.

Continue reading “Tracking Accuracy in Copyright Records – A Case Study”

Remembering the Washingtonian Case

This coming term, the Supreme Court will hear Fourth Estate Public Benefit Corp. v. Wall-Street.com, regarding whether a party has standing to sue upon application for copyright, or whether a party must wait for the Copyright Office to register (or reject) their application.  The Supreme Court only occasionally wades into this realm of technical copyright registration issues, and one of the last times the Supreme Court did so in earnest was in the 1939 case of Washingtonian Publishing Co. v. Pearson et al, where a divided court held that a 13 month delay between publication and registration did not invalidate the copyright in the work.  Although the issue is not the same in Fourth Estate, the issues are sufficiently adjacent (and issues of this ilk come before the Court so rarely), it’s unsurprising that Washingtonian v. Pearson is among the most-cited cases in Petitioner’s brief that was filed last month.

While serving as Abraham L. Kaminstein Scholar in Residence at the Copyright Office two years ago, I noticed that the Office has a bound volume of documents from the Washingtonian case, and that the transcript of record from the case available on microfilm and online from Gale includes fewer documents.  I’ve uploaded what I’m calling a “complete” casefile for Washingtonian v. Pearson, including documents from subsequent proceedings in the case after the Supreme Court remanded it.  Several years later the D.C. Circuit Court of Appeals upheld the damages award of the District Court in the amount of $15.46 (plus a worthless judgment against a bankrupt publisher), a number Washingtonian Publishing was none too pleased with, marking an anticlimax to the case.

As well as these documents, I’ve uploaded the testimony from the case following remand, which is to me the most interesting thing I found.  It includes the testimony of Drew Pearson, the defendant in this case, and longtime author of the “Washington Merry-go-Round” column.  From the testimony the broader context of the case becomes more clear – the Washingtonian magazine was owned by the still-famous Mayflower Hotel, which in 1931 declared bankruptcy.  This is why the issues of Washingtonian in question were not registered – they apparently kept publishing, but no funds were available to cover the registrations.  The shadow of the Depression hangs over this case – the corporate defendant Liveright Publishing filed for bankruptcy as well during this time.  It is doubtful that the litigation costs were terribly welcome by any of the parties to this case.

Finally, I’ve uploaded a selection of pleadings from the case that I don’t believe made their way into the transcript of record.  These include a motion to dismiss the case, a motion to strike parts of the defendant’s answer (those focusing on ownership of copyright, or lack thereof), and a motion for rehearing by the plaintiff.  Unlike the previous documents these do share parts of the argument over the issue of copyright formalities, but I don’t know if they actually add new information about the case and its reasoning/argument.

I had hoped to find a transcript of the oral argument from this case to add to my collection, but no such document was in the archives.  It might still exist, but I don’t know where it would be in this case.

Taking Common-Law Copyright for Pre-1972 Sound Recordings Seriously

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:

 

 

  1. The concept of mailing a document to yourself, sometimes called common-law or “poor man’s” copyright, is completely different, not to mention largely ineffectual.

Video Post: A 1992 Hearing on Copyright in Legal Compilations

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’s 1811 Steamboat Patent – Lost and Found

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.

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.  Continue reading “Robert Fulton’s 1811 Steamboat Patent – Lost and Found”

All the Forgotten IP Cases, Where Do they All Come From…

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)

Continue reading “All the Forgotten IP Cases, Where Do they All Come From…”

Video Post: Waldo Moore on the History of the Copyright Office

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).

Of Sheep and Goats: A Condensed History of Common-Law Copyright for Sound Recordings

“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.

Continue reading “Of Sheep and Goats: A Condensed History of Common-Law Copyright for Sound Recordings”

Video Post: A Demonstration of The World Wide Web from Early 1994

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.

Player Pianos and the Origins of Compulsory Licensing – Some Details of its Origins

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

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

  1. There were actually different technologies and names for mechanical organs at the time, but the details are only incidentally relevant and I’ve chosen to simply describe everything as player pianos and piano rolls.
  2. The casefile is pretty interesting in general, and the answer filed by the defendant includes a detailed description of how the player piano worked.
  3. The rolls were actually made by QRS, which is still in business today as the last maker of piano rolls.  This section is going to be compressed a bit, but you can read a longer version of the story of White-Smith v. Apollo at pp. 31-33 of my article Common-Law Copyright.