The tape recording industry is in its infancy, there being between 20 or 30 producers of tape recorders, tape phonographs and/or recorded tapes. At first, wire and tape recorded music was developed and used primarily by professionals, such as disk recording studios for the purpose of producing masters, and radio and television stations. Soon it came into use in providing background music services. About the same time, it began to enter the home, where it was taken up by enthusiasts for high fidelity recording and reproduction of music. About a million homes are now supplied with tape phonographs or similar equipment for playing tape recordings. Several firms have issued catalogs of recorded tapes. Some producers of recorded tape make original recordings, and others arrange to have such recordings made for them by recording studios, but probably the bulk of the recorded tapes are made from the master tapes or other matrices of established disk producers. Some 30 members comprise the Magnetic Recording Industry Association.227 Musical compositions might be: (1) in the public domain; (2) protected by common-law copyright; or (3) protected by statutory copyright. In each situation, recording industry practices obviously vary. A. PUBLIC DOMAIN If in the public domain, the musical composition may be freely used by anyone in any form or medium. Works enter the public domain when they are published without securing statutory copyright; when the statutory copyright is not properly maintained; at the end of 28 years if the original statutory copyright is not duly renewed; or at the end of 56 years, the original and renewal term of statutory copyright. Conceivably the recording and mechanical reproduction rights might be in the public domain while the other rights of statutory copyright are not.228 B. COMMON-LAW COPYRIGHT Common-law copyright, sometimes called the right of first publication, actually includes full control prior to first publication over all uses, including recording.229 Such common-law recording rights are not only perpetual, short of publication, but are also unqualifiedly exclusive since not subject to the compulsory license provision applicable to statutory copyright. 227 A more recent development is stereophonic tape which has two channels to reproduce the sound through 2 sets of amplifiers and speakers. New York Herald-Tribune Book Review, sec. 11 (June 3, 1956). 228 See notes 56, 62, supra. 220 Harper & Bros. v. M. A. Donohue & Co., 144 Fed. 491, 492 (N.D. Ill. 1905), aff'd per curiam, 146 Fed. 1023 (7th Cir. 1906); George v. Victor Talking Machine Co., 38 U.S.P.Q. 222 (D. N.J. 1938), rev'd on other grounds, 105 F. 2d 697 (3d Cir. 1939), cert. denied, 308 U.S. 611, 60 Sup. Ct. 176, 84 L. Ed. 511 (1939); see also Pickard. "Common Law Rights Before Publication" in "Third Copyright Law Symposium," pp. 298-336 (1940). Where the musical composition is protected by common-law copyright, the general practice is for the composer to assign his commonlaw copyright to a music publisher.230 Included in the assignment is the right of the music publisher to secure statutory copyright in his own name. Prior to 1932, assignments provided for scant minimum royalties to composers, say, onehalf to 1 cent per copy of sheet music or record, without provision for sharing proceeds from synchronization or foreign use. With the organization of the Songwriters' Protective Association, standard forms of contract containing provisions protective of composers, and limited to the original term of copyright, provided a pattern. Thus, the 1932 form of contract called for the composer to receive one-third of the publisher's receipts from mechanical and synchronization rights, for the composer to share in the exploitation Klein, "Protective Societies for Authors and Creators" in "1953 Copyright Problems Analyzed" 19 at pp. 32-41. At pp. 38-39 are tabulated the relative positions of composers before SPA and under the 1947 SPA contract. For the forms of the 1947 contract and 1950 renewal contract, see id., at pp. 80-93, 94106. Before SPA Recording, transcription, and motion picture Foreign royalties were often omitted from con- It was the general practice for publishers to Sheet music royalties were as low as 1 cent per An advance paid by a publisher to a writer for Publishers often required the repayment of an Royalty payment periods were not specified in sources. There was no agreement permitting the writer Disputes between writer and publisher could Under the 1947 SPA contract Recording, transcription, and motion picture Par. 4(g) of the 1947 revised contract. Par. 4(c) of the 1947 revised contract. No "bulk" deals are permitted subject to certain limited exceptions. Par. 4(j) of the 1947 revised contract. Sheet music royalties are now a minimum of 3 cents per copy, except that when the writer and publisher agree to use the "sliding scale" providing for royalties up to 5 cents per copy, the minimum for the first 100,000 copies is 23 cents per copy. Par. 4(b) of the 1947 revised contract. An advance can be deducted only from the earnings of the song on which it was paid. Par. 4(a) of the 1947 revised contract. The advance remains the property of the writer. The writer or his agent may examine the publisher's of the composition by subsequently developed methods, for the composition to be published in salable form within a specified period, for periodic royalty statements and payments, etc. This form was revised in 1939 to increase the composer's share of mechanical royalties to 50 percent, to require that the publisher hold these in trust for the composer, and to ban "bulk deals" by publishers. In 1947 the form was substantially revised to limit the assignment of rights in the United States and abroad to the original term of American copyright or 28 years, whichever be shorter; to provide for minimum sheet music royalties either on a straight 3 cents per copy basis or on a sliding scale (22 to 5 cents per copy); to require publication in sheet music form and the making of phonograph records or $250 payment; to limit reassignment; to require SPA countersignature; etc. Renewal rights 231 are not included in the SPA form of assignment. In 1950, an SPA form of renewal contract was promulgated. Not all publishers use the SPA forms. One form commonly used by prominent publishers is very short, but includes assignment of the copyright not only for the original term but also for the renewal term, provision for sheet-music royalties of 4 cents per copy of piano or dance orchestration arrangements, of 10 percent of the publisher's proceeds from the sale of copies of other arrangements, and of 50 percent of the publisher's proceeds from recording rights. Absent is any express covenant on the part of the publisher to publish sheet music or make or authorize recordings. The music publisher might (1) record,232 license the recording of, or list for licensing, the composition, and/or (2) publish copies of it in the form of sheet music. If the publisher records, licenses recording, or lists for licensing, without publishing copies, two alternative procedures are possible: (1) continued reliance on common-law copyright; or (2) securing of statutory copyright in the composition as an unpublished work.233 Since the advantages of the former were once thought to outweigh those of the latter, some publishers preferred to rely, absent publication in sheet music form, on common-law copyright. A growing number of recent cases, however, has held or intimated that the sale of a recording constitutes a divestitive publication of the recorded composition, resulting in the loss of all common-law rights therein.234 Unless this present judicial trend be reversed, the more cautious alternative of securing statutory copyright in the composition before selling recordings thereof, should soon replace the older practice completely. 231 Bricker, "Renewal and Extension of Copyright," 29 So. Calif. L. Rev. 23 (1955); Kupferman, "Renewal of Copyright-Section 23 of the Copyright Act of 1909," 44 Colum. L. Rev. 712 (1944); Brown, "Renewal Rights in Copyright," 28 Cornell L.Q. 460 (1943). See note 57 supra. Notice of use would be filed. See note 61, 232 Through such publisher's recording division. 243 See note 59, supra, pp. 49-52, infra. supra. 234 See note 71, supra. C. STATUTORY COPYRIGHT Statutory copyright might be secured in the musical composition as (1) an unpublished work, or (2) a published work.285 Statutory copyright might be secured in an unpublished work by registration and deposit of a copy.236 If the work be thereafter published, a second registration and deposit of copies are required as conditions precedent to enforcing such copyright.237 Statutory copyright is secured in a published work by publication with proper statutory copyright notice.238 Registration and deposit of copies are conditions precedent to enforcing such copyright.239 Otherwise, statutory copyright in an unpublished work and statutory copyright in a published work are identical. The duration is the same; copies published or offered for sale in the United States by authority of the copyright proprietor must bear the statutory copyright notice; 241 recording and mechanical reproduction rights are protected,242 subject to the compulsory license provision. If mechanical reproduction rights are not exercised by the copyright proprietor, anyone interested in recording the work must obviously negotiate a license to make such use. No such negotiated license may, in view of the application of the compulsory license provision, be exclusive. Once mechanical reproduction rights are exercised, anyone, under the compulsory license provision, may make "similar use" of the work at the statutory royalty rate.243 This consequence, of course, means that the statutory royalty rate operates as a ceiling for any negotiated royalty rate. The first company to record is sometimes charged a lower royalty as a concession for chancing an untested market. If a composition gains public acceptance, competing companies, within a matter of days, can issue their recordings of the composition under the compulsory license provision or under negotiated licenses.244 If 235 Copyright is secured in an unpublished musical composition by registration and deposit, that is, by the deposit in the Copyright Office of one complete copy, an application Form E (regular or "foreign," as the case may be), and the $4 registration fee. the musical composition is later published, the published copies should contain the proper Copyright notice, and the registration and deposit requirements with respect to published works would apply. Copyright is secured in a musical composition in which a claim to copyright was not registered prior to publication, by publication of the composition with proper notice of copyright. Promptly after publication with notice of copyright, two complete copies of the best edition should be deposited in the Copyright Office, along with an application on Form E and the $4 registration fee. If a new version of a musical composition is made, copyright may be secured in any new copyrightable matter contained in such new version, 17 U.S.C. 12, 10, 11, 13, 7 (1952); Copyright Office Circular No. 58 (September 1955). In the fiscal year 1955, 57,527 musical compositions were registered. "Annual Report of the Register of Copyrights for the Fiscal Year Ending June 30, 1955," p. 9. Statutory copyright endures for an original term of 28 years, 17 U.S.C. 24 (1952) (“28 years from the date of first publication"). In the case of works not produced for sale, the 28-year period runs from the date of registration and deposit. Marz v. United States, 96 F.2d 204 (9th Cir. 1938). Renewal for an additional term of 28 years may be had by timely application. See note 231 supra. Approximately one-third of the 1927 Class E registrations were renewed in 1954. "Annual Report of the Register of Copyrights for the Fiscal Year Ending June 30, 1955," p. 12. See notes 57, 73, 235, supra. 237 Ibid. 223 See notes 57, 72, 73, 74, 235, supra. 229 See notes 57, 62, 73, 235, supra. 240 See note 235, supra. 24 See note 74, supra. supra. See note 57, supra. See note 59, supra, pp. 49-52, infra. Notice of use would be filed. See note 61, According to one observer, the existence of the compulsory license provision has a tendency to smother competition for new and fresh musical material, thus aborting incentive to author and composer and accounting, in part, for the monotony, repetition and impersonal music offered to the American public. Schulman, "Effect of the Copyright Act of 1909 on the Quality of American Music" (address before annual meeting of National Kusie Council, May 16, 1956). Practices vary. Music publishers or their trustees 245 or affiliates 246 appointed to hold recording rights file notices of use and list their compositions available for recording. Recording companies, usually attempt to negotiate a license, relying on the compulsory license provision only as a last resort. In the latter event, the recording company would mail a notice of intention to use to the copyright owner and the Copyright Office, and monthly account for and pay to such owner the statutory royalty of 2 cents per composition per side, regardless of the selling price or size or speed of the recording. Where several compositions are to appear on the same side, such as in the case of a medley, the statutory royalty would be 2 cents per composition. For this reason, medleys of several copyrighted compositions are not frequently recorded in the absence of a negotiated license containing concessions by the copyright owner. Various forms of license are used in licensing the mechanical reproduction of musical compositions. The Music Publishers Protective Association has two basic forms: (1) a short-form license, where only a one-speed recording is to be released; and (2) a long-form license, where the recording is to be released at more than one speed. Under either form, an MPPA representative serves as publisher's agent-trustee. The MPPA short-form license follows the compulsory license provisions by prescribing a royalty at the statutory rate on the basis of records manufactured and in other respects 247 except that (1) accounting and payment of royalty shall be quarterly rather than monthly, (2) failure to make such accounting and payment constitutes ground for revocation of the license, and (3) serving and filing of notice of intention to use under section 101 (e) of the Copyright Act are waived.248 The MPPA long-form license is identical with the short-form license except that the royalty is (1) on the basis of records manufactured and sold and (2) at the following schedule of rates (based on manufacturer's suggested retail price) : Extended-play 45 revolutions per minute records: $1.40 or less____. More than $1.40-- 11⁄2 cents per selection, per side. Longplaying 33% revolutions per minute records: $2.85 or less___ $2.86 to $3. More than $3---. 12 cents per selection, per side. 245 E.g., the Harry Fox Office (Music Publishers Protective Association), which represents a substantial number of music publishers in this respect. 246 E.g., Music Publishers Holding Corp., a Warner Bros. subsidiary. 247 Such a license agreement has been held a substitution for, rather than a recognition of, a compulsory license under sec. 1(e), with the statutory royalty rate, provision for triple royalty in event of default in payment, etc., incorporated by reference. Edward B. Marks Music Corp. v. Foullon, 171 F. 2d 905, 908 (2d Cir. 1949) ("So far as the parties chose to incorporate into this [Mechanical License Agreement] any of the terms of sec. 1(e), these of course became the measure of their relations like its other terms; but that was only by virtue of the incorporation. Ex proprio vigore the statute fixed nothing between them.") 248 Such waiver would appear redundant, since sec. 101(e) requires notice of intention to use "In the absence of a license agreement" when reliance is "upon the compulsory license provision." See note 247, supra. |