On Thu, 24 Apr 97, Robert Cumbow <cumbr[_at_]perkinscoie.com> wrote:
>
> 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.
Even Rosette said that under the 1976 Copyright Act the issue would have been decided differently because the definition of "publication" in section 101 includes the "distribution of copies or phonorecords of a work to the public." Rosette v. Rainbo Record Mfg. Corp., 546 F.2d 461, 462 n.1 (2d Cir. 1976).
Perhaps that pronouncement was premature or simply in error. Doesn't all of what you're saying only apply to works that are controlled by the 1909 Act, not the 1976 Act, and if that's true, what makes you say that the Copyright Office wants to legislate Rosette into the current Act?
Can you clarify this? To be honest, I find the decisions regarding which Act controls and why in a current controversy to be a little tough.
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