Re: Religious Exemption

I wrote in part:
>
> 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.

John Noble <jnoble[_at_]dgs.dgsys.com> wrote:
>
> Why isn't the sound recording a separately copyrightable derivative
> of the separately copyrighted underlying work. If you and I each
> recorded our own (authorized) versions of Eleanor Rigby, we could
> copyright ours, and the Beatle's would still have a copyright on their
> recording. So why wouldn't the songwriters (Lennon/McCartney, I presume)
> have an independent copyright in the unrecorded song. Isn't the first
> recording also a "derivative" of the underlying work, at least when the
> underlying work was earlier fixed in a tangible form.

and Bob Stock <bstock[_at_]ucla.edu> replied:
>
> 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.

Yes, it applies only to works under the 1909 Act. The basis for my statement is a package of legislation sent by the Copyright Office to the 1996 Congress which included a revision to the Copyright Act that would expressly reject the La Cienega holding and codify the Rosette holding by stating that, under the 1909 Act, publication of a sound recording of a musical work is not a publication of the underlying musical work. Congress didn't move on the package and the Copyright Office subsequently withdrew it; but recent remarks by one of the Copyright Office's attorneys lead me to believe they haven't given up.

Clearly since this involves only works created under the 1909 Act it arguably has ever-diminishing importance; I brought it up in the context of this thread largely because it seems to represent the philosophically preposterous notion that you can publish a recording of a song and still consider the underlying song "unpublished." I understand--and agree--that the recording and the song are two different works for copyright and authorship purposes, as Mr. Noble points out; but it seems like eating your cake and having it too, to say that a musical work can be recorded and remain unpublished. That's sorta like Tom Clancy claiming that a publisher's printing and distribution of his latest book was not a publication of the underlying novel. It's a real head-scratcher for me.

Bob Cumbow
<cumbr[_at_]perkinscoie.com> Received on Mon Apr 28 1997 - 19:28:06 GMT