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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
moving picture rights," were sufficient to embrace not only
motion pictures of the sort then known but also such technical
improvements in motion pictures as might be developed... The
development of mechanisms making it possible to accompany the
screen picture with the sound of spoken words was but an im-
provement in the motion picture art. As the plaintiff well
says, 'talkies' are but a species of the genus motion pictures."

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):

"a. The Copyright Office takes no position as to whether
copyright in a motion picture covers the integrated
sound track portions of the work.

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
the scope of this legislation, the Committee does not intend
to limit or otherwise alter the rights that exist currently
in such works. The exclusion reflects the Committee's
opinion that sound tracks or audio tracks are an integral part
of the 'motion pictures' already accorded protection

that the reproduction of the sound accompanying a copyright
motion picture is an infringement of copyright in the motion
picture."

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-
rightable component part of a motion picture sound track
(e.g., a musical composition) is considered an integral part
of a motion picture. Registration of any copyrightable com-
ponent part of a motion picture sound track may be made by
registration of the motion picture...

* 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
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:

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"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

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"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.

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