Copyright and Common Law

Subject: Copyright and Common Law
From: Q (Frank Staplin)
Date: 06 Apr 05 - 03:04 PM

"New York's highest court ruled Tuesday that common law protects the rights of a record company to all sound recordings made before the 1972 federal copyright law in a decision that will affect old hits from Bach to the Beetles." Article by Michael Gormley, Associated Press.
The result is that artists, their estates and others involved in recordings made before 1972 should be able to collect royalties in the United States for their performances, said Phillip Allen Lacovara, the attorney for Capitol Records that won the state decision released Tuesday.
Naxos has appealed. The case revolves around 1930s performances recorded in England by the Gramaphone Co. (now EMI)

See article in major newspapers; one is the Houston Chronicle.
www.chron.com/CS/CDA/sstory.mpl/business/3120463.

Subject: RE: Copyright and Common Law
From: Richard Bridge
Date: 06 Apr 05 - 03:44 PM

The page you have tried to reach, /CS/CDA/sstory.mpl/business/3120463, doesn't exist.
Why don't you try one of several things?
If you typed the URL that got you here, make sure the capitalization and punctuation are correct and try again.
If you followed a HoustonChronicle.com link and got here, please report the bug by sending email to [e-mail] Click on any of the links on the sidebar to go to that location.
If you were looking for an archived article, you can search HoustonChronicle.com

Thanks for visiting HoustonChronicle.com!

Subject: RE: Copyright and Common Law
From: Richard Bridge
Date: 06 Apr 05 - 03:47 PM

Shame the link is dead. I find it hard to believe the case could have affected the absence of perfomers' rights in the USA from the year dot to present, and also see more than a few problems for international issues since the USA has been a problem for international rightsowners since about 1909 if not before...

I would have liked to read the judgment

Subject: RE: Copyright and Common Law
From: Nigel Parsons
Date: 06 Apr 05 - 03:50 PM

The Link
Found by following the above link and searching for "Lacovara"
Could the mix of upper & lower case letters have caused the link to fail?

Nigel

Subject: RE: Copyright and Common Law
From: GUEST
Date: 06 Apr 05 - 03:50 PM

try this:

http://www.chron.com/cs/CDA/ssistory.mpl/ae/music/3119545

Subject: RE: Copyright and Common Law
From: Q (Frank Staplin)
Date: 06 Apr 05 - 04:53 PM

The Houston article was put into archive, so the link I gave no longer works.
Today, Google provides two links if one searches "Court rules common law" Gormley.
The same article (slight rewrites) is linked for Associated Press and for Newsday.

Subject: RE: Copyright and Common Law
From: Uncle_DaveO
Date: 06 Apr 05 - 05:00 PM

Here's my understanding, based on 36 years working for a federal district court with jurisdiction of such matters:

US federal copyright is under the jurisdiction of the federal courts, which ruled (at the appellate level) in favor of the defendant (alleged infringer). That ruling, if it is not appealed to the Supreme Court, would be the last word between the parties as to the parties to that suit, and would be controlling on the same issues in that federal circuit, and persuasive to other federal courts--but only dealing with the federal coppyright.

New York State has its own common law copyright. The highest appellate court of New York ruled for the plaintiff on the basis of THAT law. That ruling, I believe, is not binding on any other state, although it might be persuasive if cited in a similar case in a state with common law similar to New York's.

I'm not a lawyer, and I don't know the ins and outs of how the apparent partial conflict can be resolved. Off the top of my head, because one case deals with federal copyright and the other deals with state common law, I don't believe the two cases are legally at odds.

Dave Oesterreich

Subject: RE: Copyright and Common Law
From: Q (Frank Staplin)
Date: 06 Apr 05 - 06:01 PM

Dave I believe is correct, and puts the action in perspective.
The ruling applies to all recordings marketed in New York but I am sure that any action will be stayed until the Naxos appeal decision is brought down.

Subject: RE: Copyright and Common Law
From: Burke
Date: 07 Apr 05 - 09:32 AM

Here is the court's decision. It's a PDF.

I read about half of the document yesterday. There's actually some interesting history of copyright included.

Subject: RE: Copyright and Common Law
From: Richard Bridge
Date: 07 Apr 05 - 11:33 AM

I'm off to read the judgment, but my immediate reaction is that there is certainly an interesting issue of federal pre-emption involved, which I don't fully understand because I am an English lawyer not an American one.

It is also my general impression that this is a decision of New York State law, and therefore only persuasive in other relevant states - the other relevant states being thise that have common law copyright in non-pre-empted matters (which I think California does) and where sound recordings are a subject of non-pre-empted copyright (and I have no idea which those states are)

Subject: RE: Copyright and Common Law
From: Brían
Date: 07 Apr 05 - 11:52 AM

I apologize for the brusque posting interpreting IANOL. This is an interesting discussion. I don't post my own lyrics on Mudcat because I don't have the finacial resources to fight if they are infringed on, but I do sing them at Mudcat gatherings. I understand copyright protection is a fairly recent innovation. I read Chales Dickens came to America to advocate for copyright protection because A Christmas Carol was being pirated so widely in America. My Homeboy Henry Wadsworth Longfellow was forced to settle cheap with a London publisher because he was told that if he waited about three weeks, he could get one of Longfellow's early works, Outre Mer for free.

More recently, I had a friend who pitched an idea to a television network I shall not name, had it turned down,then saw the network use the idea in a slightly modified version and denied to him that
they stole his intellectual property.

Brían

Subject: RE: Copyright and Common Law
From: Richard Bridge
Date: 07 Apr 05 - 12:05 PM

I have read the judgment. It is I think convincing.

Brian, read the judgment: it will let you realise how long copyright has been around.

A format for a television programme is bereft of copyright in the UK as a result of the House of Lords' (in its form as the Privy Council) ruling in Hughie Green's case in 1988 that the format of a television show lacked the necessary dramatic unity to be a dramatic work. Only works of the types specifiec in statute are protected by copyright in the UK. The UK has no common law copyright any more. The FRAPA website advertises a publication arguing that the consistent decisions of the German courts to somewhat similar effect are wrong so that formats should be protected by copyright in Germany. I have not spent the necessary 78 Euros to get a copy so cannot say whether I disagree with it.

The issue of whether the production of a television programme in a form described in a written document is an act restricted by copyright in that written document is untested: this is often called the "Rabbit Pie" problem after the rhetorical question of whether baking a rabbit pie infringes the copyright in the recipe.

The preceding paragraphs do NOT imply that for so long as it remains confidential a format is bereft of protection as confidential. That is a separate topic.

This posting does not address issues of passing off, which both the USA and UK recognise, or unfair cometition as such, which the USA and much of Europe but NOT the UK recognise as such.

Subject: RE: Copyright and Common Law
From: Q (Frank Staplin)
Date: 07 Apr 05 - 01:24 PM

Copyright regulations first appeared in 1735 (England) and were discussed in Blackstone's Commentaries in 1767.
(Don't ask me about the content, I'm not about to dig out an old set of Blackstone).

Subject: RE: Copyright and Common Law
From: Brían
Date: 07 Apr 05 - 02:45 PM

Thank you, Richard Bridge. The incident regarding Charles Dickens can be found here. There was a precedent in Ireland regarding St. Colmcille in the 540s here. I just realized I was posting to the wrong copyright thread.

Brían