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sources not controlled by ASCAP, largely but not wholly from the public domain.
Meantime, on May 26, 1941, the United States Supreme Court announced two noteworthy opinions (written by Justice Black) upholding the right of the state legislatures of Florida and Nebraska to make it unlawful for copyright owners to combine and operate within the state for the purpose of determining and fixing license fees or other "exactions." "We find nothing in the copyright laws which purports to grant to copyright owners the privilege of combining in violation of otherwise valid state or federal laws." Watson v. Buck; Marsh v. Buck, 49 USPQ 468, 474.
This was a staggering blow to composers, especially as the way was now open for other states to enact similar legislation and thus virtually outlaw the Society (ASCAP) within the borders of such states (bills to that end had already been introduced in some twenty-four state legislatures as early as 1937 but allowed to rest for the time being). The prospect was hardly calculated to encourage the members of the Society to continue the struggle on the same lines. They had "fought the good fight” and while all problems involved were not covered by these adverse decisions, it was wisely concluded by ASCAP and the broadcasters to settle their differences through the operation of the principle of compromise and mutual concession. Mechanical Reproduction of Music
Following the first clause of subsection (e), with the semicolon placed after the word "composition" as indicated (see footnote, p. 130) we then have:
"and for the purpose of public performance for profit and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it (i.e., the musical composition) or of the melody of it in any form of record in which the thought of an author may be recorded and from which it may be read or reproduced"
It would seem as if two distinct rights are embraced here, viz: (1) the right to make any arrangement or setting of the musical composition, or the melody thereof, in any system of notation from which it may be read; and (2) the right to make any form of record by means of which the composition may be mechanically performed.
Now, No. (1) seems already covered by subsection (b), “to arrange or adapt it if it be a musical work”; for its status as a musical work is not changed by the system of notation in which it is written (e.g., the tonic sol fa) so long as it can be read and performed.
So that the only additional right granted here would seem to be No. (2), the right to make records, incapable of being read but serving as parts of instruments by means of which the sounds can be produced. The Supreme Court had already decided in White-Smith Music Pub. Co. v. Apollo Co., 209 U. S. 1 (1908), that piano rolls (and by analogy phonograph records and the like) did not embody a system of notation which could be read, and hence were not "copies" of the musical composition within the meaning of the law, but constituted merely parts of devices for mechanically performing the music. The right of public performance already existed under the Act of 1897, and this undoubtedly included such performance by mechanical instruments. It was the right to make such instruments and devices that was lacking, and so Congress here undertook to grant such right, but without intending to extend the right of copyright to the mechanical devices themselves (see Report No. 2222, in Appendix). No court appears as yet to have deemed such devices the "writings" of an author.
Royalties for Mechanical Use
But because of what seemed at the time a well-grounded fear of monopolistic control of music for such purposes (see the Report just cited), Congress saw fit to qualify the right of mechanical control by providing in subsection (e) of section 1 that if the copyright proprietor himself used or sanctioned the use of his composition in this way, any other person was free to do so upon paying a royalty of two cents for each part (each roll or record) manufactured. Note that the right to make such records by others on the conditions specified does not carry the right of public performance for profit by means of such records. Berlin v. Daigle & Russo, 31 F.2d 832 (CCA 5, 1929). Notice of Use
The last proviso of section 1 (e) of the Act obligates the owner of the music copyright, if he uses or licenses others to use the work for recording purposes, to file in the Copyright Office a notice thereof, and failure to do so "shall be a complete defense to any suit, action, or proceeding for any infringement of such copyright”. The term "such copyright" here refers back to the first proviso, "copyright controlling the parts of instruments serving to reproduce mechanically the musical work”, and does not include the performing rights. Berlin v. Daigle & Russo, supra.
Section 25(e) of the Act provides that once the recording right has been released, any one who wishes to exercise the right must, in the absence of a license agreement, serve a notice of his intention upon the copyright proprietor, and file a duplicate thereof in the Copyright Office. Unpublished Music
Observe that the mechanical rights are applicable only to "compositions published and copyrighted" subsequent to July 1, 1909. Apparently unpublished compositions copyrighted under section 11 were overlooked here, but perhaps the deposit of copy in the Copyright Office may in itself be deemed a kind of publication sufficient for the purposes of this provision, just as it was deemed in connection with the duration of copyright secured in unpublished work under that section, in Marx v. United States, 37 USPQ 380 (CCA 9, 1938); contra, Shilkret v. Musicraft Records, Inc., 52 USPQ 164 (DC SNY), Dec. 11, 1941. Foreign Composers
Foreign composers are excluded from this privilege unless their countries grant similar mechanical rights to "citizens of the United States". Resident foreigners therefore seem not en titled to enjoy this right, where their own countries do not reciprocate, and the extension of the right must be formally announced by special proclamation (by the President of the United States). [So held in Portuondo v. Columbia Phonograph Co., 36 USPQ 104 (1937)].
Note the phrase, “may make similar use of the copyrighted work upon payment of the royalty". It seems that he must make his own rolls or records independently, and not merely duplicate by copying those made by another manufacturer. Aeolian Co. v. Royal Music Roll Co., 196 F. 926 (1912).
Notice of Copyright
Inasmuch as such "parts of instruments" are not in themselves copyrightable, the provision in section 9 requiring the notice of copyright to be "affixed to each copy” of a published work does not apply to these mechanical devices in order to protect the musical composition. Buck v. Heretis, and Buck v. Lester, 24 F.2d 876, 877 (1928). The same ruling would of course apply to recorded dramas, lectures or other literary works. Part 2—Subsidiary Rights Embraced in Copyright
In addition to the rights specifically enumerated in section 1 of the Copyright Act, there are certain other rights incident to copyright, such as the right to renew for another term; the right to assign the entire copyright or to license the use of any of the subsidiary rights; the right to prevent the importation of piratical copies or in violation of the manufacturing clause; and of course the right to bring suit for infringement. Moral Rights
The courts have recognized to some extent the so-called “moral right" of the author to prevent the mutilization of his work after he has assigned or licensed the use of it for dramatization or other purposes; this by applying well-recognized principles of equity which have been developed in the field of unfair use. The author may stipulate the extent of the changes, additions, etc., that may be made, and the question then, in case of dispute, becomes one for the courts to determine in the light of the contract. Dreiser v. Paramount Publix Corp., N.Y. Sup. Ct., Westchester Co., Aug. 1, 1931, memorandum opinion.
In Curwood v. Affiliated Distributors, Inc., 283 F. 219 (1922), Judge Knox remarked: “And now as to what is acquired when one procures the right to elaborate upon an original story ... I take it that, while scenery, action, and characters may be added to an original story, and even supplant subordinate portions thereof, there is an obligation upon the elaborator to retain and give appropriate expression to the theme, thought, and main action of that which was originally written. The unqualified grant of this right is, I should say, fraught with danger to a writer of standing, particularly when he inserts no provision for his approval of such elaboration as may be made ... Nevertheless, elaboration of a story means something other than that the same should be discarded, and its title and authorship applied to a wholly dissimilar tale."
This of course applies to all works of an author, and the extent of permissible modification, aside from contractual stipulations, will depend upon the nature of the original work and the use to which it is put. But the question comes up most frequently in connection with the adaptation of stories or dramas for screen or broadcasting purposes, where obviously the adapter must be allowed a fairly free hand with respect to details because of the different methods of presentation and wider public to be served, and it may often be a difficult matter to determine whether or not he has gone beyond the limits of fair use. Hence the only safe way for the author is to provide in the contract that the scenario or script in its final form shall be submitted to him for approval. Interpretative Rendition
The Copyright Act does not recognize any right of a performing artist in his interpretative rendition of a musical composition, any more than the interpretation of an actor in the performance of a play, although we know that the success of the performance is often due largely to this personal element. The question comes up in connection with phonographic recordings of such renditions, and is entirely disconnected with the right of performing the original composition in public for profit, which of course has to be secured from the copyright proprietor. The Copyright Office does not regard such records as acceptable for registration, in view of the decision of the Supreme Court in White-Smith Music Pub. Co. v. Appollo Co., 209 U.S. 1 (1908).
Nevertheless, the courts in certain states have held that when the rendition is of a high order of artistry, the director of the orchestra has created something in the nature of property at common law in no way overlapping or duplicating the rights of the composer of the music, and should be protected against unauthorized performance by means of the records. Some importance was given to the fact that the records bore notice "Not licensed for radio broadcasting". While the defendant had secured a license to broadcast the musical composition from the proprietor thereof, the court held that it had no right to broadcast this particular rendition. Waring v. WDAS Broadcasting Station, Inc., 35 USPQ 272 (Pa. Sup. Ct. 1937); Waring v.