scope of the statutory provision granting a performance right for dramatic works. The court took the narrow view that when this latter provision was enacted, "Nobody then thought of 'drama' or 'dramatic work' in terms The court then observed that: "As a general rule, the effect of a new invention in any given field seems to be a matter for legislative consideration, rather than for the extension of existing statutes by judicial construction." On appeal, the District Court ruling in the Bijou Theatre case was set aside by the Circuit Court of Appeals (59 F. 2d 70, 1st Cir. 1932), which adopted the view of the court in the Tiffany decision. The Circuit Court stated its approach in seeking to find the intention of Congress as follows: "The copyright statutes ought to be reasonably construed with Leaning on court decisions (notably Buck v. Jewell-La Salle, 283 U.S. 191 (1931), to be discussed below) holding that radio transmission and reception were within the statutory provisions as to public performance of music, the Circuit Court commented: "No sound reason appears why publication through the sense of hearing is more damaging than publication through the sense of sight. If inhibition is applicable to the former, it should also apply to the latter. There appears to be an increasing tendency to liberalize the construction of copyright statutes to meet new conditions which have rapidly developed within the last decade and which are continuing to develop, perhaps most strikingly illustrated by the application of radio broadcasting to copyright." On remand of M.G.M. v. Bijou Theatre, 3 F. Supp. 66 (D. Mass. 1933) (remanded for determination that the motion picture involved was a "photoplay") the District Court followed the Circuit Court opinion in holding that the unauthorized exhibition of the photoplay infringed the right to perform it as a species of dramatic work. It said further that if the motion picture were considered non-dramatic, its exhibition would infringe the right specified in the statute to dramatize a non-dramatic work. The Tiffany Productions and Bijou Theatre decisions may be seen as indicating the view that the economic benefits of copyright were intended to be accorded for uses of copyrighted works in connection with new technological processes, even though such uses through those processes were not expressly provided for in the statute, as long as similar uses through previously known processes were within the terms of the statute. A.2.2.4 Sound Tracks as a Protected Part of Copyrighted Motion Picture. A whole new set of questions was raised by the advent of "talking pictures" near the end of the 1920s. One such question was presented in the case of L.C. Page & Co. v. Fox Film Corp., 83 F. 2d 196 (2d Cir. 1936) where the author of a copyrighted novel licensed the plaintiff to exercise "the exclusive moving-picture rights" in the novel; this license was granted in 1923 when "talking pictures" were not yet known commercially. One of the issues in the case was whether this license gave the plaintiff the exclusive right to make talking pictures when they were later developed. The court held that the license did cover talking pictures: "We can entertain no doubt that the words used, "the exclusive A more fundamental question raised by the development of sound tracks was whether the sound track and its literary or musical content are protected by the copyright in the motion picture. There appear to be no judicial rulings on this precise question. In practice the industry groups concerned tacitly accepted and operated on the premise that the sound track is protected as an integral part of the motion picture; and this premise appears to be logically valid since the pictures and sound together are necessary to constitute the complete work and to convey its artistic effect. As some commentators have pointed out,* there was room for doubt as to whether the copyright in a motion picture protected its sound track, since sound tracks might be equated with phonograph recordings which (before the enactment in 1971 of the statutory amendment to be referred to presently) were not copyrightable. Because of this doubt, the Copyright Office, until 1975, stated in its Compendium of Copyright Office Practices (section 2.14.1, III): The Copyright Office takes no position as to whether b. Registration is not made for a sound track alone, or for a sound track as the only new matter in a previously published or registered motion picture.' On October 15, 1971, the copyright law was amended by Public Law 92-140 to extend copyright protection for the first time to "sound recordings" which were defined as "not including the sounds accompanying a motion picture." The House Report (No. 92-487) on this amendment explained: "In excluding 'the sounds accompanying a motion picture' from This amendment and the pronouncement in the Congressional Report served to remove the doubt about the protection of the sound track under the copyright in the motion picture. On March 19, 1975, the Copyright Office amended its regulations to state: "For purposes of deposit and registration only, any copy- * For example, NIMMER ON COPYRIGHT, sec. 25(2). The foregoing history of how the statutory provision for the copyright protection of motion pictures was adapted to the later development of sound tracks as an adjunct to the pictures illustrates another process of adaptation to new technology. Here, while there was a court decision (in the Page case) that hinted indirectly at the inclusion of the sound track as part of the protected motion picture, there was no clear ruling on the question for many years during which a practical adaptation was made by the industry groups concerned; and ultimately the premise of that practical adaptation was confirmed by a Congressional pronouncement and by the adoption of a corresponding interpretation of the law in the regulations of the Copyright Office concerning its registration practices. A.2.2.5 Use of Music in Sound Tracks. Shortly after the White-Smith decision in 1908, Congress enacted a general revision of the copyright law in 1909. Section 1 of the revised law incorporated, among the exclusive rights embraced in copyright, the new right to make any "record" of a literary, dramatic, or musical work from which the work may be "reproduced." In the case of music under section 1(e), this right with respect to "the parts of instruments serving to reproduct mechanically the musical work" was made subject to a compulsory license; that is, whenever the copyright owner permitted the use of his music in a mechanical recording, anyone else could make a similar recording of the music upon payment of a royalty of 2 cents per record. In Jerome v. Twentieth Century-Fox Film Corp., 67 F. Supp. 736 (SDNY) decided in 1946, the defendant motion picture producer contended that the compulsory license provisions for the mechanical recording of music should be applied to the recording of music on motion picture sound tracks. The court rejected this contention, saying: "When (the compulsory license provisions) went into effect "'Talkies are but a species of the genus motion pictures." The sound on film parallels and synchronizes with the pictures on the film. The sound on film is not the type of 'mechanical reproduction' to which Section 1(e) of the Copyright Act applies... "The Copyright Act permits the copyright of a motion picture...; This decision may be seen as a counterpart of, and consistent with, those reviewed above which extended the terms of the statute to include motion pictures and their sound tracks so as to provide the benefits of copyright to the creators of motion pictures and to the creators of works used in motion pictures. In the Jerome case, extension of the compulsory license to the recording of music in motion picture sound tracks would have cut back sharply on the benefits enjoyed by the copyright owners of music; motion pictures producers would have paid almost nothing for the highly valuable privilege of using copyrighted music in their films. So, the statute was construed to preserve the benefits of copyright for the creators of music. A.2.2.6 Motion Pictures Under the New Act of 1976. The general revision of the copyright law, P.L. 94-533, enacted on October 19, 1976, confirmed and embodied in the statute the rulings outlined above by which the earlier statutes had been adapted to the subsequently developed motion picture technology. Thus, under the new statute: "Motion pictures" are listed among the categories of pro- As for the use of other works, such as literary or drama- The copyright in a motion picture embraces specifically |