Another Season, Another Common-Law Copyright Opinion

To be clear, this is my opinion only, and the views expressed in this post, and indeed this blog, should not be imputed or otherwise associated with anyone else.

This one from the Supreme Court of Florida, finding that Florida common law does does not recognize an exclusive right of public performers for the holders of common-law copyrights in sound recordings made before February 15, 1972.  The 11th Circuit certified a series of questions to the Florida Supreme Court, namely:

  1. Whether Florida recognizes common law copyright in sound recordings and, if so, whether that copyright includes the exclusive right of reproduction and/or the exclusive right of public performance?
  2. To the extent that Florida recognizes common law copyright in sound recordings, whether the sale and distribution of phonorecords to the public or the public performance thereof constitutes a publication for the purpose of divesting the common law copyright protections in sound recordings embedded in the phonorecord and, if so whether the divestment terminates either or both of the exclusive right of public performance and the exclusive right of reproduction?
  3. To the extent that Florida recognizes a common law copyright including a right of exclusive reproduction in sound recordings, whether Sirius’s back-up or buffer copies infringe Flo & Eddie’s common law copyright exclusive right of reproduction?
  4. To the extent that Florida does not recognize a common law copyright in sound recordings, or to the extent that such a copyright was terminated by publication, whether Flo & Eddie nevertheless has a cause of action for common law unfair competition / misappropriation, common law conversion, or statutory civil theft under FLA. STAT. § 772.11 and FLA. STAT. § 812.014?

Instead of addressing these questions, the Court chose to address a reformulated question of its own, “Does Florida common law recognize the exclusive right of public performance in pre-1972 sound recordings?”  The obvious problem with this is that it fails to address whether pre-72 sound recordings are protected under Florida law more generally.  The Court notes (pp. 19-20) that Florida criminal law provides penalties against commercial bootleggers of sound recordings, but those criminal provisions do not impact a range of activity including noncommercial infringement.

This could be excused as judicial minimalism if it wasn’t central to the case – Flo & Eddie sued in Florida specifically because SiriusXM has servers there, and alleged that copying was ongoing on those servers in violation of their exclusive right of reproduction.  The Court later in the opinion reasoned that because the criminal statute exempts copying made in the course of “as part of a radio, television or cable broadcast transmission,” so the copying would not trigger civil liability under common-law copyright, regardless of whether any such rights exist.  But of course this analysis doesn’t properly follow – whether certain actions do not give rise to criminal liability does not mean the same actions give rise to civil liability.  One only need to look at federal copyright law (or, indeed, nearly any body of law) for ample demonstration of this – most conduct which gives rise to a civil claim for infringement does not give rise to a criminal claim for the same conduct.

So, in revising the question formulating by the Circuit Court to one it preferred, the Florida Supreme Court effectively ignored one of the main claims being brought by Flo & Eddie.  However, I believe the Court’s reasoning on the performance rights claim is problematic as well.  One key part of the Court’s analysis is that finding performance rights would upset settled expectations and cause wide-ranging impacts not expected by the statute.  Regardless of whether this is true, 1 the Court relies on a second argument as well.  The Court notes that Congress extended federal copyright protection to sound recordings in 1972, but in the same breath denied them performance rights.  The Court thus reasons that Congress could not have intended to take away rights that existed, and thus performance rights must not have existed before that time as well.

The problem with this analysis is that Congress clearly was taking away performance rights, at least for sound recordings from Pennsylvania, where a performance right had existed at common law since the decision of that state’s Supreme Court in the 1937 Waring v. WDAS decision.2  And by the evidence, this was a tradeoff sound recording rightsholders were fine with at the time – the right to federal remedies against bootleggers of recorded music was worth far more than a right in some states to demand royalties for sound recording performance.  This is especially true because record companies did not want to imperial radio airplays by demanding additional royalties at the time.

Regardless, Florida is unlikely to revisit this decision anytime soon.  California is the next stop, where the same issue is now being briefed before that state’s Supreme Court.

  1. I’m skeptical that the Flo & Eddie cases would actually have such an effect since they’re only aimed at services that already pay royalties for sound recordings, and indeed Flo & Eddie and SiriusXM reached a settlement that would resolve the issue, but that’s another story.  By contrast, I do think the ABS series of cases, targeting terrestrial radio stations, may raise broader concerns, regardless of the legal merits.
  2. Whether New York recognized such a right was unclear in 1972 – the 1940 RCA v. Whiteman decision had said no, but in 1955 the same Court (the 2nd Circuit) found that decision to be overruled.  Three states including Florida had expressly abrogated the performance right by statute, and as far as I’m aware 45 states had no precedential decisions or laws on the topic.

Blogiversary, Mark 1: Looking Forward

It’s hard to believe that today marks the one-year anniversary of when I first posted to this blog in earnest (I started it a few months earlier but hadn’t posted anything beyond a “hello world” post). In the process I’ve been pleasantly surprised at how many people are interested in what is surely one of the more esoteric blogs about intellectual property law out there.

I have an awful lot in the backlog of stuff to share, including a lot of tidbits about sound recording copyright and the White-Smith decision, as well as a post I really should get out soon on Copyright and the 11th Amendment/Sovereign Immunity.  However, the biggest project I’m working on is an empirical project, bringing together statistics of copyright in America from 1790 through 2015.  Here’s a teaser of what I’m working on (with my coauthor Richard Schwinn, an economist):

All Registrations per capita

This chart shows the number of copyright registrations made, per 100,000 people, per year, with the color of the line representing the cost of registration adjusted for inflation.  This is only the tip of the iceberg – the statistics I’ve assembled are broken down for the type of work for 1870 to the present, and I have rates of renewal for 1909-2005 as well for all classes.  A paper that hopefully lays it out all is in the works.  Here’s to another great blog-year.

The Forgotten Origins of Copyright for Photographs

It’s fairly well-known that photographers like Matthew Brady used photographs in unique and important ways during the Civil War to document the conflict like never before.  It’s also known among copyright nerds that 1865 saw not just the end of the Civil War, but the amendment of the federal copyright statute to include photographs.  However, the conventional narrative of this law has always been that the amendment to the law to include photographs was close to a bolt from the blue.  As William Patry puts it:

This Act had a remarkably short legislative history. On February 22, 1865, the Committee on Patents and the Patent Office, which had been studying the issue, reported S.468, which was passed by the Senate the same day. The House passed the bill on March 2, and President Lincoln signed it into law the next day.

Source (internal citations/quotations omitted).  The law is one of Abraham Lincoln’s two main accomplishments on copyright, the other being his appointment of Ainsworth Spofford to be the Librarian of Congress in the same year.  However, the legislative history of the law was longer than has currently been understood, as a bill to include photographs within copyright law had actually been introduced in the House the previous year by Thomas A. Jenckes and committed to that chamber’s Committee on Patents.  However, for reasons that are unclear the House did not order the Bill printed, and as a result it has been all but forgotten until I found a manuscript copy of the bill in the Congressional files at the National Archives.

Finding the bill was a bit of a fluke – when I was writing my article on the origin of performance rights for music in 1897, I went through Thorvald Solberg’s work Copyright in Congress, 1789-1904, in search of any previous bills to provide such performance rights. What I found is that for a number of bills, he describes copyright bills, but provides no details as to the content of the bill.  The Library of Congress’s American Memory – A Century of Lawmaking site does not have a copy of the bill (House Bill 505 from the 38th Congress), so I (perhaps excessively) checked the files of the Committee at the National Archives.  Sure enough, there’s a handwritten copy there.  My scan of the bill is here, and I’ve included a transcription below the jump.

The act that would be passed in 1865 to include photographs in copyright is extremely terse, stating that  the provisions of the copyright law “shall extend to and include photographs and the negatives thereof which shall hereafter be made, and shall enure [sic] to the benefit of the authors of the same in the same manner, and to the same extent, and upon the same conditions as to the authors of prints and engravings.”1  On the other hand, the bill introduced by Jenckes in 1864 created a whole mechanism for deposit of a “memorandum” describing the photograph with the clerk of the District Court (since copyright registration was still at the District Courts until 1870).  Also included, seemingly added later, were two final sections establishing limited trademark protection for the marks of photographers (six years before the first law providing for federal trademark protection).

I don’t currently know the connection between the 1864 Jenckes Bill in the House and the bill a year later in the Senate which became law, but the introduction of the Jenckes Bill gives an explanation of how Congress moved so quickly on the issues – even if the public record doesn’t make it clear, the House Committee on Patents had been considering a bill to include photographs within copyright since the previous session of Congress.  There’s probably the necessary information to link these bills in the Papers of Thomas A. Jenckes; one of these days I hope to be able to tell the whole story.  But in the interim, this seemed a nugget of information worth sharing.  The bill text follows below the jump.

Continue reading “The Forgotten Origins of Copyright for Photographs”

  1. the 1865 Act then includes several paragraphs reestablishing the requirement of copyright deposit with the Library of Congress, a requirement which has been retained ever since