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
as part of the March 4, 1909 revision of the Copyright Act,
sound on film motion pictures was unknown. 'Talkies' so-
called, were not produced until about 1924. The report of the
1909 Copyright Bill to the House of Representatives (Report
No. 2222) discusses Section 1(e) and mentions the various
types of mechanical reproductions such as phonographs and
piano-playing instruments, 'purely mechanical' means. Counsel
assert that no more than 500 positive prints of a film of a
musical motion picture are made to supply the demands for
exhibition purposes. If Section 1(e) applied to a motion pic-
ture use of a musical composition, then any producer could
appropriate a copyrighted musical composition for use in a
motion picture for a total sum of about $10.00, at the rate
of 2 cents for each positive print.

"'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...;
but a music roll or victrola record cannot be copyrighted...
It was not intended that motion picture films should be in the
same class as mechanical reproductions... To give to the de-
fendant's contention any recognition would be to run counter
to the clear intent of Congress. The result would be destruc-
tive of valuable rights of composers and publishers, which the
Act was intended to secure and protect.

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-
tected works (sec. 102 (a)), and that term is defined
(in sec. 101) as including "accompanying sounds, if any."

As for the use of other works, such as literary or drama-
tic works, in motion pictures, the exclusive rights in the
various categories of protected works include the right
"to prepare derivative works based upon the copyrighted
work" (sec. 106), and a "derivative work" is defined (in
sec. 101) as including a "motion picture version" of any
preexisting work.

The copyright in a motion picture embraces specifically
the right to "perform" it "publicly" (sec. 106), and to

"perform" a work is defined (in sec. 101) as meaning, "in the case of a motion picture ... to show its images in any sequence or to make the sounds accompanying it audible."

The exclusive right "to reproduce the copyrighted work in copies" (sec. 106) includes the recording of a musical or other work in a motion picture sound track, since "copies" are defined (in sec. 101) as "material objects in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."*

The compulsory license for the recording of music is confined to the making of "phonorecords" (sec. 115), and that term is defined as excluding the sounds "accompanying a motion picture."

So it is that the adaptation of the 1909 and earlier statutes to motion pictures is completed by the new copyright law of 1976.

A.2.3 SOUND RECORDINGS

A.2.3.1 Right to Record Copyrighted Works. Devices for the recording and playing back of music and other sounds were developed late in the 19th century, and during the first few years of the 20th century the manufacture and sale of such recordings in the form of both phonograph records and piano rolls grew to a business of substantial volume. The copyright owners of music sought to subject the recording of their music in these new devices to their copyrights by instituting infringement suits, and by proposing, in the movement begun in 1905 to revise the copyright statutes, that the law be amended to accord them a new exclusive right to make recordings of their copyrighted works.

The most important of the infringement suits was the famous case of White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, decided by the Supreme Court in 1908, to which reference has been made above. The question at issue was whether perforated music rolls, by which copyrighted musical works could be played mechanically on player pianos,

* This definition of "copies" overturns the holding in the White-Smith decision. And note how it seeks to anticipate future technologies for recording and reproducing images and sounds.

infringed the copyright owner's exclusive right of "copying" his music under the statute enacted in 1870. Holding that the piano roll was not a "copy" of the musical work within the meaning of the statute, the Supreme Court first referred to the earlier decisions of two lower courts and of an English court so holding, and pointed out that Congress had since amended the copyright law (in other respects) when it must have known of those decisions; from that the Supreme Court reasoned that "the omission of Congress to specifically legislate concerning (sound recordings) might well be taken to be an acquiescence in the judicial construction given to the copyright laws." The Supreme Court continued:

"When we turn to the consideration of the act it seems evident that Congress has dealt with the tangible thing, a copy of which is required to be filed with the Librarian of Congress, and whenever the words are used (copy or copies) they seem to refer to the term in its ordinary sense of indicating reproduction or duplication of the original..."

"The definition of 'copy' which most commends itself to our
judgment is perhaps as clear as can be made, and defines a
copy of a musical composition to be 'a written or printed
record of it in intelligible notation'... The statute has not
provided for the protection of the intellectual conception
apart from the thing produced, however meritorious such con-
ception may be, but has provided for the making and filing of
a tangible thing, against the publication and duplication of
which it is the purpose of the statute to protect the composer.

Finally the Supreme Court observed:

"It may be true that the use of these perforated rolls, in the
absence of statutory protection, enables the manufacturers
thereof to enjoy the use of musical compositions for which they
pay no value. But such considerations properly address them-
selves to the legislative and not to the judicial branch of
the Government."

Inasmuch as this decision of the Supreme Court in the White-Smith case has often been cited for the proposition that a reproduction of a work which is not visible to the human eye is not an infringement, it should be noted here that this proposition has been greatly modified, and eventually negated, by subsequent legislation and later court rulings, as we shall see.

The foregoing pronouncements in the White-Smith decision can be characterized as being not so much a statement of judicial philosophy concerning

the adaptation of the copyright law to new technology, as it is an instance of the general principle of narrow judicial construction of statutes on the premise that new issues not specifically dealt with in a statute should be left for Congress to determine.

A philosophical view of how the copyright law should be adapted to new technology is enunciated in the concurring opinion of Justice Holmes in the White-Smith case. He began by saying:

"In view of the facts and opinions in this country and abroad to which the majority opinion has called attention I do not feel justified in dissenting from the judgment of the court, but the result is to give to copyright less scope than its rational significance and the ground on which it is granted seem to me to demand...

He then went on:

"The ground of this extraordinary right (i.e., copyright) is
that the person to whom it is given has invented some new
collocation of visible or audible points, -- of lines, colors,
sounds or words. The restraint is directed against repro-
ducing this collocation, although but for the invention and
the statute any one would be free to combine the contents of
the dictionary, the elements of the spectrum, or the notes
of the gamut in any way that he had the wit to devise. The
restriction is confined to the specific form, to the colloca-
tion devised, of course, but one would expect that, if it was
to be protected at all, that collocation would be protected
according to what was its essence. One would expect the
protection to be coextensive not only with the invention,
which, though free to all, only one had the ability to achieve,
but with the possibility of reproducing the result which gives
to the invention its meaning and worth. A musical composition
is a rational collocation of sounds apart from concepts,
reduced to a tangible expression from which the collocation
can be reproduced either with or without continuous human
intervention. On principle, anything that mechanically repro-
duces that collocation of sounds ought to be held a copy, or
if the statute is too narrow ought to be made so by a further
act, except so far as some extraneous consideration of policy
may oppose."

As shown by the later decisions dealing with motion pictures, which were reviewed above, and by those relating to radio broadcasts, to be reviewed below, the philosophical approach of Justice Holmes in the