Re: Religious Exemption

Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> I would be startled to see a court hold that playing a sound
> recording wasn't the performance of a musical work. So, for that
> matter, would ASCAP, which makes a living collecting royalties
> for such performances. Asking whether the sound recording "is also"
> a musical work seems misguided -- the sound recording incorporates
> a musical work.

Would you also be startled to see a court hold that the publication and sale of a sound recording was not a "publication" of the underlying musical work? Rosette v. Rainbo, 354 F.Supp. 1183 (SDNY 1973), aff'd 546 F.2d 461 (2d Cir 1976). The Ninth Circuit, in its wisdom, held the opposite in La Cienega v ZZTop, 53 F.3rd 950 (9th Cir 1995), but the Copyright Office has tried (so far unsuccessfully) to get Congress to override La Cienega and legislate the Rosette holding into the Copyright Act. I agree with Professor Lemley's analysis of the relationship between a sound recording and a musical work--but the Copyright Office evidently does not.

Bob Cumbow
<cumbr[_at_]perkinscoie.com> Received on Thu Apr 24 1997 - 18:00:23 GMT