Democracy of Sound (25 page)

Numerous media developments in the first half of the twentieth century undermined this idea that a visual expression was necessary for copyright protection. Film, radio, and television all provided new examples of meaning conveyed by technological means quite distinct from the palpable, visual world of print and paper. Still, lawmakers and judges found ways to square the circle; a movie could be understood as a series of individual images, thus fitting into
the precedent of copyright for photographs. Advances in computer technology, especially during and after World War II, posed much thornier dilemmas. For instance, should a string of ones and zeroes or a microchip qualify as a novel mechanical achievement, worthy of patent, or a meaningful cultural expression, deserving copyright?
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The growing use of media such as magnetic tape added to this confusion. A motion picture can be viewed as a series of individual images, which were already copyrightable, but a recorded performance was fundamentally different and distinct from the written composition on which it was based. Authorities thus found it easier to fit film into the old copyright paradigm than musical recordings; the record possessed elements of creativity that could be found only among its vinyl grooves or magnetic particles, not on the written page. At Congressional hearings in 1962, the American Guild of Authors and Composers (AGAC) argued that “all forms of authorship creation, visual and aural (whether on disk, electronic tape, or otherwise) should be deemed to be copyrightable ‘writings.’” The AGAC went on to note that, with the increasing use of recording technology, the “initial expression” of a work often first occurred in an electronic form—for example, a poet speaking into a tape recorder, or a jazz band improvising in the studio.
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Such works did not start with written symbols and then get inscribed in an electronic medium. Indeed, legal scholars Harriet Pilpel and Morton Goldberg pointed out that certain types of electronic music could not even be transcribed in any conventional notation, thus denying them any chance for copyright protection.
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Record producer Herbert Kanon explained the problems he faced with his own “sound effect” recordings, which he could only copyright in the form of a book that described the sounds. The AGAC concurred: “Often, the only full of expression of a work—a musical composition as performed or a motion picture—consists of a fixation by such form of recording.”
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The AGAC’s term “authorship creation” is telling. This vaguely industrial-sounding expression alludes to the creation of something and implies that some kind of authoring occurred, but who authored what is unclear. Although the phrase did not enter general usage, one can assume that the AGAC chose “authorship creation” carefully in preparing its testimony. The author is easy to find when one imagines a literary genius pecking away at a typewriter, but media like radio and film almost always involved the creative contributions of numerous workers. One could say the screenwriter was the author of the Hollywood blockbuster, but countless decisions separated the script’s creator from the final product, the series of images on the screen. Was the gaffer or the key grip an author? What about the cinematographer, the person who actually pointed the camera and determined what the images would look like? By convention the film director has won the honor of a byline in the movie business, but even
this person (usually) works for the movie studio, and “works for hire” were owned by whoever put up the money and did the hiring.
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Not everyone at the hearings, at least in the early 1960s, was convinced that the problem of who authored or owned a recording could be resolved. Organized labor worried that reform would result in a record company, rather than the performers, receiving the copyright. Even songwriters and their publishers were unsure about the revision; the record companies could end up possessing a stronger copyright than the composers, who had limited control over who could record their work and only received a flat rate for each copy of a recording. The Music Publishers Association’s Philip P. Wattenberg explained the problem:

Music publishers have always been against copyright of records. They have difficulty in understanding just how this can be done. For example, if we take a musical composition “Begin the Beguine,” it has been copyrighted as a composition, which has been published in printed form, assume we now license RCA Victor to make a record of “Begin the Beguine” in exactly the same series of notes that we have in the printed form. In other words, there is no arrangement. If RCA Victor were to try to copyright that record under the title “Begin the Beguine,” in whose name would that copyright be? Certainly it could not be RCA because the basic work is copyrighted in the name of the publisher. This can only lead to confusion and a dilution of the rights of the original copyright owner, which is the publisher.
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If the recording is merely a note-for-note transcription of the sheet music into sound with little in the way of interpretation, what is the record company’s claim to a copyright? It can only consist of hiring a musician, buying the studio time, and paying for the production and promotion of the record. In other words, it is a monetary and technical investment in this hypothetical scenario, involving almost no degree of interpretation or artistry. The record companies thus wished to obtain a copyright for their capital.

Wattenberg’s example is an extreme one, but the possibility that individual interpretations
would
be unique (and copyrightable) also raised concerns. In 1962, the lawyer Julian Abeles insisted to lawmakers that sound recordings were not sufficiently original to merit copyright. Even if they were, the result would be a logistical nightmare, at least from a legal and economic perspective. “If every time an artist rendered a composition that rendition would be subject to copyright, then we would have innumerable copyrights of every composition, because each artist would claim copyright for his or her purported original rendition,” Abeles said. One performer might sing the song in a particular tone of voice; claiming a copyright for that rendition, he or she might try to stop someone else
from recording it a similar style. How the engineer recorded or mixed a performance might be copyrighted as a unique interpretation. Critics of a copyright for recordings wondered how courts could possibly sort out the claims of those who “owned” certain sounds. Technology seemed to open up new avenues for individual expression, but how those expressions would be handled individually was far from clear.
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Given profundities of this kind, as well as the lack of unity within the music industry on the subject, Congress backed away from providing copyright for sound recordings in the early 1960s. Instead, lawmakers tried to formulate a more limited bill that would make counterfeiting illegal. Support for such a modest step was more forthcoming. “Sound recordings should be protected against physical reproduction, i.e., dubbing, for a limited term comparable to the term of copyright,” the Author’s League allowed. “However, copyright protection is not required for this purpose and, in fact, could cause serious disadvantages. A simple prohibition against dubbing would serve the purpose.”
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In contrast, Barbara Ringer, who worked in the Copyright Office and later became Register of Copyright, believed that any such prohibition would have to be based on copyright law. How else could dubbing be banned except on the grounds that someone else’s creative expression was being unfairly exploited—the purpose of copyright? As introduced in April 1961, the bill forbade anyone from selling and distributing a counterfeit record over state or national lines “without permission of the owner of the master recording.”
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Ringer’s view won out, however. Congress realized that prohibiting people from copying and selling a record was tantamount to giving it copyright, and that lawmakers might as well resolve the issue directly rather than indirectly. The resulting bill, passed in 1962, focused instead on duplication of the packaging of the record, rather the music inside it. “The bill was limited to dealing with what was then the rather pernicious practice of simply duplicating everything, the trade dress, the appearance of the label and album cover,” Ringer recalled in 1971, “so that you could not tell the legitimate record from the counterfeit.”
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She also noted that pirates got around the law simply by forgoing any effort to mimic the original package.

Taking the Battle to the States

Congress revisited copyright reform in 1964, shortly after two landmark Supreme Court decisions set a new precedent for limiting property rights.
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In the 1940s and 1950s, courts had zigzagged from Learned Hand’s cautious approach to an expansive view of copyright in
Metropolitan Opera v. Wagner Nichols
(1940) and
Capitol v. Mercury
(1955). In
Sears
and
Compco
(1964),
however, the court held that one company could not be prevented from copying the look of another’s light fixture, since the design was not a unique invention or a work explicitly protected under copyright. Since copyright was the prerogative of Congress, and it had specifically listed what items could be protected, state governments and the courts had no power to create additional property rights. Such “quasi-property rights” not only impinged on the supremacy of Congress but also opened up potentially unlimited rights that, under copyright law, would have been limited to a fixed number of years. Kaminstein warned that the industry could end up with
stronger
rights if Congress neglected to provide clear guidelines for sound recording, and Ringer echoed this concern. “In the absence of Federal legislation,” she said, “performers and record producers have what amounts to a complete monopoly under state law.”
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In yet another turn, though, virtually every subsequent court ruled that
Sears
and
Compco
did not permit the copying of sound recordings. They determined that the rulings could not extend all the way from the design of a lighting fixture to a record, in which much time and money had been invested. According to this view, the two decisions permitted copying or imitating someone else’s work but not directly appropriating it through piracy.
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The distinction is fine but significant: “copying” referred only to imitating the look or sound of another product, while “appropriating” meant taking the product itself—in this case, a recorded performance—and selling it as one’s own. Just months after
Sears
and
Compco
, in the case
Capitol Records v. Greatest Records
, the New York Supreme Court enjoined Greatest Records from selling two albums and a single by the Beatles that were originally released by Capitol Records.
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The court determined that
Sears
only concerned the “copying of an idea,” while pirating a Beatles record amounted to taking and profiting from someone else’s actual product.
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Five years after the
Greatest
case, the California Court of Appeals agreed that reproducing a sound recording amounted to outright theft.
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A company called Phoenix sold tape copies of recordings by the Lettermen, taking care to remind consumers on the packaging that they were in no way affiliated with the group’s label, Capitol Records. The difference in design would protect them from prosecution under the 1962 anti-counterfeiting law, Phoenix thought, and the disclaimer would prove that they were not “palming off” their tapes as Capitol’s products—a tactic that had consistently failed since the heyday of Wynant Van Zant Pearce Bradley in 1909. Phoenix had also changed the order of the tracks on the tape, perhaps to show that they were not selling the exact same product. “It is obvious that Phoenix is able to sell the cartridges at such lower price, and still gain substantial profit, because Phoenix circumvents the necessity of expending skill and money in acquiring the artists and recording their performances,” Justice Park Wood wrote for the court. “Thus, Phoenix unfairly appropriates
artistic performances produced by Capitol’s efforts, and Phoenix profits thereby to the disadvantage of Capitol.”
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Phoenix was guilty of unfair competition, having taken advantage of not just the artistic performance acquired by Capitol but also the popularity of the recording. Recall that the doctrine of unfair competition grew out of trademark rulings in the nineteenth century that prohibited a company from taking advantage of the reputation of a competitor by deceiving customers into associating its own products with another firm’s well-regarded name.
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In the twentieth century, this notion gradually expanded to address cases in which a pirate unfairly profited from the popularity of a recording artist by copying his or her works—as when Wagner-Nichols put out recordings of the Metropolitan Opera without the organization’s permission. While Phoenix had not attempted to pass itself off as Capitol, it did sell a hit by the Lettermen that had not become popular by accident. Justice Wood noted that Capitol had spent $10,000,000 producing master recordings since 1965, and over three times as much to advertise them.
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Record companies enjoyed an unbroken string of successful litigations in the mid to late 1960s, yet several factors suggest that these were Pyrrhic victories. A lawyer who defended tape copiers on numerous occasions won only one such case, when a South Carolina judge declined to grant an injunction against his clients. Even then, the decision was subsequently overturned on appeal. On at least one occasion a judge in North Carolina forbade a defendant only from copying the plaintiff’s records,
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and the defendant went on merrily pirating music by all the other companies. Meanwhile, the record industry told anyone who would listen that the cases were easy to win but costly to pursue and difficult to enforce. Sometimes the penalties imposed by a court barely deterred an especially prosperous pirate. The Recording Industry Association of America (RIAA) complained to Congress that a pirate was fined only $500 in the case
Capitol Records v. Frank D. Campoy, Jr
., an amount the offender was able to absorb as a “minor, incidental expense.”
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