Thomas Edison invented the phonograph in 1877, the first device that was capable of recording and reproducing sound. The device would soon become an important source of musical entertainment. Columbia Records, formed in 1888, for example — now a subsidiary label of Sony Music Entertainment — would boast a catalog 10 pages long of pre-recorded musical records by 1891.
As early as 1888, songwriters and composers would claim, unsuccessfully, that reproducing their songs on mechanical devices like the phonograph was copyright infringement. 1Kennedy v McTammany, 33 F. 584 (D. Mass. 1888). Courts rejected these claims, including the Supreme Court in 1908, but Congress eventually stepped in and recognized mechanical reproduction as one of the exclusive rights of copyright owners in the Copyright Act of 1909.
Recording artists would not be so successful in making the claim that they too were entitled to separate legal protection for their interpretation of musical compositions on recordings. As early as 1906, manufacturers of recorded media would seek copyright protection for their works. 2Copyright Law Revision, Study No. 26: The Unauthorized Duplication of Sound Recordings, Subcommittee on Patents, Trademarks, and Copyrights (1961). Repeated attempts in courts and legislatures would fall short; legal protection against “dubbing” and bootlegging sound recordings would not begin to appear until the late 60s, and only then in the states. By 1970, half of state legislatures prohibited sound recording piracy. 3Capitol Records v Naxos, 830 NE 2d 250 (NY Ct of Appeals, 2005). Federal law eventually recognized copyright protection for sound recordings in 1972, but only for recordings made after that date, and only for reproduction, distribution, and derivative works — a public performance right in sound recordings continues to be denied to this day under US law, contrary to most other nations, 4According to the Future of Music Coalition, “At least 75 nations, including most European Union member states, do have a performance right.” except in the case of digital public performances. 517 USC § 114.
But recording artists would have sporadic successes in courts to protect their works before the arrival of federal copyright protection. One example is Metropolitan Opera Assn v Wagner-Nichols, a 1950 decision from the New York Supreme Court 6Unlike the federal court system, where the Supreme Court is the highest level court, the New York Supreme Court is the lowest, trial level court. granting a preliminary injunction against a company engaged in unauthorized duplication of sound recordings. 7199 Misc. 786. The court relied on the common law tort of unfair competition and equitable principles to reach its decision.
The language of the decision makes it worth a read. It serves as a reminder that, while copyright protection itself is solely a creature of statute, it is firmly rooted in principles of justice, fairness, and equity. After opening with a discussion of the facts of the case, the court writes:
In passing upon the question of the sufficiency of a complaint alleging unfair competition it is helpful to bear in mind the origin and evolution of this branch of law. It originated in the conscience, justice and equity of common-law judges. It developed within the framework of a society dedicated to freest competition, to deal with business malpractices offensive to the ethics of that society. The theoretic basis is obscure, but the birth and growth of this branch of law is clear. It is an outstanding example of the law’s capacity for growth in response to the ethical as well as the economic needs of society. As a result of this background the legal concept of unfair competition has evolved as a broad and flexible doctrine with a capacity for further growth to meet changing conditions.
Defendants had argued that unfair competition was limited to “palming off” someone else’s work as their own. Thus, since defendants weren’t claiming the recordings as their own, there was no unfair competition. The court discarded this argument, as well as the argument that defendants weren’t in direct competition with the Opera.
The modern view as to the law of unfair competition does not rest solely on the ground of direct competitive injury, but on the broader principle that property rights of commercial value are to be and will be protected from any form of unfair invasion or infringement and from any form of commercial immorality, and a court of equity will penetrate and restrain every guise resorted to by the wrong-doer.
The court next considers the public’s interest in applying the doctrine of unfair competition to this case, in a discussion that parallels discussions about the goals and purposes of copyright law.
The production of an opera by an opera company of great skill, involving, as it does, the engaging and development of singers, orchestra, the training of a large chorus and the blending of the whole by expert direction into a finished interpretative production would appear to involve such a creative element as the law will recognize and protect against appropriation by others.
The fostering and encouragement of fine performances of grand opera, and their preservation and dissemination to wide audiences by radio and recordings are in the public interest. The Metropolitan Opera, over a period of sixty years, has developed one of the finest, if not the finest, opera companies available to Americans. Through the media of recordings and broadcasts, an avenue of culture has been opened to vast numbers of Americans who have been able to enjoy the fruits of this great enterprise. To many, it is the only available source of grand opera. To refuse to the groups who expend time, effort, money and great skill in producing these artistic performances the protection of giving them a “property right” in the resulting artistic creation would be contrary to existing law, inequitable, and repugnant to the public interest. To hold that the broadcasts of these performances, making them available to a wider audience of Americans, deprives the Metropolitan Opera of all of its rights in this production and abandons the production to anyone to appropriate and exploit commercially, would indeed discourage the broadcasting of such operas and penalize not only the Metropolitan Opera but the public which now benefits from these broadcasts. Equity will not bear witness to such a travesty of justice; it will not countenance a state of moral and intellectual impotency. Equity will consider the interests of all parties coming within the arena of the dispute and admeasure the conflict in the scales of conscience and on the premise of honest commercial intercourse.
The court ultimately grants the injunction. It ends by noting:
The conclusion here reached is not an onslaught on the currents of competition; it does not impose shackles on the arteries of enterprise. It simply quarantines business conduct which is abhorrent to good conscience and the most elementary principles of law and equity.
|↑1||Kennedy v McTammany, 33 F. 584 (D. Mass. 1888).|
|↑2||Copyright Law Revision, Study No. 26: The Unauthorized Duplication of Sound Recordings, Subcommittee on Patents, Trademarks, and Copyrights (1961).|
|↑3||Capitol Records v Naxos, 830 NE 2d 250 (NY Ct of Appeals, 2005).|
|↑4||According to the Future of Music Coalition, “At least 75 nations, including most European Union member states, do have a performance right.”|
|↑5||17 USC § 114.|
|↑6||Unlike the federal court system, where the Supreme Court is the highest level court, the New York Supreme Court is the lowest, trial level court.|
|↑7||199 Misc. 786.|