New York affirms common law copyright
A recent case, Capitol Records v. Naxos of America,Download file, confirms that the State of New York recognizes common law copyright, the somewhat obscure cousin of the federal copyright law, and holds that common law copyrights can exist even if a work is in the public domain elsewhere in the world.
Generally speaking, the subject of common law copyrights does not come up much unless you are a music lawyer dealing in pre-1972 sound recordings or a bona fide copyright geek. From the latter perspective, the case is worth reading as an excellent summary of the evolution of the copyright system from English law, through the founding of our federal government, and into today.
For various reasons federal copyright protection for sound recordings was not enacted until 1971, with effect on February 15, 1972, and then only on a prospective basis. As a result, pre-1972 sound recordings continued to rely on common law copyrights, which had their basis in 18th century English law. And some state courts, including New York, had ruled that common law copyrights could endure perpetually. Whereas the general rule was that common law copyrights terminate on publication, the courts found that sale of records was not such a "publication" for technical reasons and therefore could endure perpetually.
The technical basis was due to a Supreme Court decision in 1908, White-Smith v. Apollo, which held that a music roll for mechanical pianos was not a copy and publication, because it was not in human-readable form, and thus was rather a performance. This logic was extended to consider a phonograph record as nothing but a captured performance of a composition. Because it was thus possible that these common law copyrights might endure perpetually, a compromise was enacted as Section 301(c) of the Copyright Act to preempt common law protection 75 years later, on February 15, 2047.
Today, when some question the proper duration of statutory copyrights under the "free culture" banner, it is somewhat breathtaking to be reminded that common law copyrights might have endured perpetually but for this legislation. This also reflects that copyright clearance and determination of what is in the public domain worldwide can present distinct legal complexities and traps for the unwary.
Cathy Kirkman is a partner at Wilson Sonsini Goodrich & Rosati in Palo Alto, California. Her practice focuses on intellectual