Re: [ARSCLIST] Brunswick Records rights/Universal

[Karl Miller <lyaa071@xxxxxxxxxxxxxxxxx>]

On Sun, 29 Jan 2006, Bob Conrad wrote:

> Steven, I don't think you understand what I am saying.  Your first reply
> stated that the copyright on pre-1972 U.S. recordings are now under
> Federal jurisdiction (quote from you: "Only they ARE under Federal
> jurisdiction").  I do not believe that is true.  Pre-1972 U.S.
> recordings are still protected under individual state laws.
>
> For example, if these recordings were protected under Federal law, as
> you assert, then Naxos would not have been tried in a N.Y. state court.
> It would have been a Federal suit.  The Naxos case would have been tried
> in Federal court -- not N.Y. state court.  And it would have cost both
> parties at least 10 times more, because Federal court is extremely
> expensive.  But the Naxos case WAS tried in N.Y. state court.

While I am not an lawyer, don't quote me...but it was my understanding:

Round one had Naxos being sued in Federal Court. The district court
(Federal) in the State of New York granted summary judgment to Naxos. The
reasons being cited included that even if Capitol had been given a license
to issue the EMI recordings, that the UK copyrights expired and that EMI
had lost ownership and did not have the right to sell license to Capitol
or anyone else for that matter. Other aspects of the decision included the
notion that "abandonment of copyright" (other companies had already issued
some of the material and had not been sued)
indicated that Capitol had no interest in the recordings, and further,
that Naxos' reissues were an improvement on the recordings. I also find it
interesting that the Federal court cited the notion that the original
recordings were obsolete. From my perspective, the district court's
position could be seen as faulty. While I support the notion of abandoment of
copyright, the GATT treaty suggests that while EMI no longer owned their own
recordings in the UK, the did indeed own them in the US. The GATT treaty
gives all signing nations full benefit of the US copyrights within the
boarders of the US. Perhaps based on my limited understanding, it would seem
that EMI did indeed own their recordings in the US.

EMI appealed the decision to the Second Circuit Court of Appeals. They
directed the case to the New York Court of Appeals. They, in turn, cited
New York's common law copyright.

http://www.codmanllp.com/CapitolRecords_v_Naxos.pdf

> So Steven, your reply ("Only they ARE under Federal jurisdiction") only
> applies to U.S. recordings made/created/copyrighted after 1972, and to a
> very small extent, certain post-1946 foreign recordings, which is a
> whole can of beans and it would probably be best if we didn't even get
> into that topic.

While this may be a moot point, if the Federal law upholds the State laws,
does that mean that the common law copyright for New York, is now part of
the Federal copyright, as it is applied in the State of New York.

As an aside, the Chinese copyrights are amongst the least encumbered,
however even they include problematic statements:

ArticIe 20 The rights of authorship, alteration and integrity of an author
shall be unlimited in time.

Article 21 The term of protection for the right of publication and the
rights referred to in Article l0, paragraphs (5) to (17), of this Law in
respect of a work of a citizen shall be the lifetime of the author and
fifty years after his death, and expires on 31 December of the fiftieth
year after the death of the author. In the case of a work of joint
authorship, such term shall expire on 31 December of the fiftieth year
after the death of the last surviving author.

While its term of protection is clear...it would seem that a restored
version of a recording could come under the notion of Article
20..."alteration." I believe any reformatting is an alteration. Also,
consider a musician who might choose the cover art, decide the order of
tracks on a disc, etc. Is that not part of their authorship...So, perhaps
you could reissue a 50 year old recording, but you might have to do it
using the original stamper, and layout and design of the original booklet.

http://www.chinaiprlaw.com/english/laws/laws10.htm

It seems to me that even world-wide these issues are not easy to deal
with.

Karl