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on the general revision of the copyright law. During the progress of those proceedings in the following two years, the producers of sound recordings became concerned primarily with opposing the extension to composers of the exclusive right to make recordings of their music; and since the Constitutional arguments presented by the producers on the latter issue would have barred the coverage of sound recordings under the copyright law, they dropped their efforts to secure such coverage. The Copyright Act of 1909 therefore contained no provision for securing copyright in sound recordings, and the House Committee in its Report (No. 2222, 60th Cong.) on the 1909 Act said:

"It is not the intention of the committee to extend the right of copyright to the mechanical reproductions themselves, but only to give the composer or copyright proprietor (of musical compositions) the control, in accordance with the provisions of the bill, of the manufacture and use of such devices."

Thereafter the Copyright Office, as well as most commentators, took the position that sound recordings were not copyrightable under the 1909 Act, both because the categories of copyrightable works listed in the Act did not include them, and because they did not fit into the basic requirements of the Act as to copyright notice and the deposit of copies.

Beginning in the 1930s, a number of court decisions held that the unauthorized reproduction of the recording of a performance could be enjoined under principles of unfair competition or "common law copyright" (the latter being property rights under the common law in unpublished works). The judges differed as to whether the sale of records constituted "publication" so as to terminate common law copyright protection.

The most important of these decisions was Capitol Records, Inc. v. Mercury Records Corp., 221 F. 2d 657 (2d Cir. 1955), in which the court made several significant pronouncements. It concluded first:

"There can be no doubt that, under the Constitution, Congress can give to one who performs a public domain musical composition the exclusive right to make and vend phonograph records of that rendition."

Thus, it disposed of the issue, which has been much disputed, of whether a recorded performance could be considered the "writing" of an "author" within the scope of the Constitutional clause on copyright. The court then went on to conclude that Congress had not provided for copyright protection of recorded performances either before or in the Act of 1909. It concluded further that under the common law of New York the recorded performance was protected against unauthorized duplication, and that the sale of records did not terminate those common law rights.

In a dissenting opinion in the Capitol Records case, Judge Learned Hand agreed that:

"The performance or rendition of a 'musical composition' is a
'Writing" under Article I, Sec. 8, Cl. 8 of the Constitution
separate from, and additional to, the 'composition' itself.
It follows that Congress could grant the performer a copyright
upon it, provided it was embodied in a physical form capable
of being copied... Now that it has become possible to capture
these contributions of the individual performer upon a physi-
cal object that can be made to reproduce them, there should
be no doubt that this is within the Copyright Clause of the
Constitution."

Judge Hand also agreed with the court's conclusion, though on somewhat different reasoning, that Congress had not provided for copyright in recorded performances; and he agreed further that such recordings qualified for common law protection, but differed in his view that common law protection was terminated by the sale of records. Concerning this last point he observed:

"I recognize that under the view I take the plaintiff can have
only a very limited use of his records. This is indeed a
harsh limitation, since it cannot copyright them... Unhappily
we cannot deal with the situation as we should like, because
the copyrightability of such 'works' is a casus omissus from
the Act. That was almost certainly owing to the fact that in
1909 the practice of recording the renditions of virtuosi had
not sprung up.

The Capitol Records and other similar court decisions paved the way for Congressional legislation extending copyright protection to sound recordings, by holding that recordings of performances were the "writings" of "authors" within the scope of the Constitution, and that they merited the protection afforded by copyright. The influences of these court decisions was augmented by the concurring views expressed by most commentators.*

* See, for example, Chafee, Reflections on the Law of Copyright in

45 COLUMBIA LAW REVIEW 503 (1945)

A.2.3.2.1 Congressional Legislation. The successive bills for general revision of the copyright law, beginning with the bill first considered by Congress in 1965, contained provisions naming "sound recordings" as a category of copyrightable works, and giving the copyright owner of those (and other) works the exclusive rights "to reproduce the copyrighted work in copies or phonorecords" and "to distribute copies or phonorecords of the copyrighted work to the public." During the hearings on the revision bills there was virtually no opposition to these provisions.

When action on the general revision bills lagged (for reasons unrelated to the question of protecting sound recordings) and it became evident that "record piracy" had become rampant and was growing, a special bill was introduced to add to the existing copyright statute, provisions for the protection of sound recordings against unauthorized duplication. The provisions of this special bill were the same in substance as those in the general revision bills, making sound recordings a new category of copyrightable works and giving the copyright owner the exclusive rights to reproduce them and to distribute them to the public. This special bill was enacted on October 15, 1971, as Public Law 92-140.

The general revision bill was eventually enacted on October 19, 1976, as Public Law 94-553. To expand on the earlier summary of its pertinent provisions:

"Sound recordings" are listed among the categories of works protected by copyright (sec. 102(a)), and that term is defined (in sec. 101) as "works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords in which they are embodied."

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The copyright owner of all categories of protected works,
including sound recordings, has the exclusive rights
"(1) to reproduce the copyrighted work in copies or phono-
records; (2) to prepare derivative works based upon the
copyrighted work; (3) to distribute copies or phonorecords
of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending."
(sec. 106).

It is stated specifically (in sec. 114) that the exclusive rights of the copyright owner in a sound recording do not include any right of performance (this was a matter of

sharp controversy in the hearings); and that the right to reproduce a sound recording is limited to the duplication of the actual sounds fixed in the recording and does not extend to the independent fixation of other sounds even though they imitate those in the copyrighted recording.

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Generally speaking, wherever the new Act makes provisions
respecting "copies" of copyrighted works, it extends those
provisions to "phonorecords" as well. (The definitions
in sec. 101 of "copies" and "phonorecords" have been quoted
earlier.)

In sum, the history of the extension of copyright protection to sound recordings reflects a situation where court opinions concerning a new technology, supported by the concurring views of commentators, laid the foundation for subsequent legislation.

A.2.4 RADIO AND TELEVISION BROADCASTS

The Copyright Act of 1909 incorporated in substance, in section 1, provisions giving the copyright owner the exclusive right to "perform" the work "publicly" in the case of a dramatic work, and to "perform" it "publicly for profit" in the case of a musical composition; and the 1909 Act added, for the new category of lectures and similar works prepared for oral delivery, the corresponding right to "deliver" the work "in public for profit." In 1909, of course, radio and television broadcasting was unknown; a public performance was thought of as a performance given in the presence of a group of persons assembled within sight or hearing of the performers.

A.2.4.1 Broadcasting as Performances. When radio broadcasting was developed and the use of copyrighted music and plays in radio broadcasts became common in the early 1920s, the question arose whether broadcasts of copyrighted works were public performances within the scope of the 1909 Statute. In the case of Jerome H. Remick & Co. v. American Automobile Accessories Co., 5 F. 2d 411 (6th Cir. 1925), this question was presented with respect to a radio broadcast of a musical work. The court held that the broadcast did constitute a public performance, saying:

"While the fact that the radio was not developed at the time
the Copyright Act... was enacted may raise some question as to
whether it properly comes within the purview of the statute, it
is not by that fact alone excluded from the statute. In other
words, the statute may be applied to new situations not antici-
pated by Congress, if, fairly construed, such situations come

within its intent and meaning. Thus it has been held both in this country and England that a photograph was a copy or infringement of a copyrighted engraving under statutes passed before the photographic process had been developed ... While statutes should not be stretched to apply to new situations not fairly within their scope, they should not be so narrowly construed as to permit their evasion because of changing habits due to new inventions and discoveries."

... A performance, in our judgment, is no less public because the listeners are unable to communicate with one another, or are not assembled within an inclosure, or gathered together in some open stadium or park or other public place. Nor can a performance, in our judgment, be deemed private because each listener may enjoy it alone in the privacy of his home. Radio broadcasting is intended to, and in fact does, reach a very much larger number of the public at the moment of the rendition than any other medium of performance. The artist is consciously addressing a great, though unseen and widely scattered audience, and is therefore participating in a public performance."

This decision was frequently cited and consistently followed and its rulwas generally accepted in practice by the broadcasters and other concerned.

The conclusion that broadcasting constitutes a public performance was confirmed, though indirectly, by a statutory enactment in 1952 (66 Stat. 752) the primary purpose of which was to extend performing and recording rights to nondramatic literary works. At the request of the broadcasting industry, a sentence was added to that enactment to place a limit of $100 on "the damages for the infringement by broadcast" of nondramatic literary works where the broadcaster was unaware and could not have reasonably foreseen that he was infringing.

A further question related to the broadcasting of music was whether such broadcasts were public performances "for profit," since the performance right in music was limited to those that were given "for profit." This question was also considered in the Remick v. Automobile Accessories case reviewed above, where the broadcasting station was operated by the manufacturer of radio products and supplies and was licensed as a commercial station and used as a medium for advertising its products. Citing earlier cases to the same effect, the court held the broadcasts to be public performances "for profit" and observed:

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