Common Law Copyright Makes it On Broadway

Originally posted 2005-04-06 07:47:00. Republished by Blog Post Promoter

The online New York Law Journal (registration with a credit card for at least a free trial required) reports as follows:

ALBANY: In an unprecedented expansion of common law copyright protections, the Court of Appeals [New York’s highest state court] yesterday said recording artists are shielded in perpetuity under New York standards even when their foreign copyrights have long since expired. Attorneys predicted the 7-0 ruling in Capitol Records v. Naxos of America, [Inc.], would have a significant impact on the recording industry.

This almost sounds like an April Fool’s joke, it appears (at first blush) so far-reaching. They link to the opinion here. Also interestingly, the decision was in response to three questions certified by the Second Circuit, to wit:

Southern District Judge Robert W. Sweet found that Capitol has no common law copyright protection in New York, leading to an appeal to the U.S. Court of Appeals for the Second Circuit and three questions certified to the New York court. The questions were:

  • Does the expiration of copyrights in the United Kingdom extinguish any New York common law copyright?
    • Answer: No.
  • Does a successful claim under New York copyright common law require evidence of unfair competition?
    • Answer: No.
  • Is an infringement claim in New York defeated through evidence that the alleged infringer produced a “new” product as opposed to a facsimile of the plaintiff’s existing product?
    • Answer: No.

Does this change everything? No. It appears to have little application beyond odd cases such as this one, where the copyright in the performance recordings — here, 1930’s recordings of cellist Pablo Casals, pianist Edwin Fischer and violinist Yehudi Menuhin — have expired. There is no federal copyright protection for pre-1972 recordings, and the UK’s 50-year copyright had expired, so Capital proceeded on a common law theory.) Besides, as the article says, “Practically speaking, though, federal law will preempt New York common law on Feb. 15, 2067.”

That’s a relief!

By Ron Coleman

I write this blog.

One thought on “Common Law Copyright Makes it On Broadway”
  1. Why should federal law preempt state common-law copyright at the expiration of what the current term would be (or so I assume that date is), but not preempt it when it’s not in federal copyright now?

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