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Last June, I wrote briefly about the Capitol Records v. Naxos case, in which Naxos released opera recordings from the 1930s to which Capitol held all remaining rights. Federal copyright law recognizes no copyrights in sound recordings made before 1972, so Capitol couldn’t sue for infringement under federal law. So Capitol sued in federal court for infringement of its New York state common law copyright in the recordings. (As of now, state law copyright applies only to pre-1972 sound recordings, though it used to apply more broadly.)

The question became whether New York state common law copyright covered the sound recordings in question, and if it did how long the protection lasts. Nobody knew; the question had never come up. So the Second Circuit Court of Appeals asked the New York State Court of Appeals (that state’s highest court) for the answer. Yesterday, it replied: New York state common law copyright protects pre-1972 sound recordings, and it protects them for as long as possible. In this case, that means pre-1972 sound recordings are protected until February 15, 2067, the date Congress has chosen to cut off all common law copyrights in sound recordings.

Though it doesn’t affect the result, the court badly misunderstands La Cienga Music v. ZZ Top and the resulting Congressional enactment of section 303(b) on pages 23-26 of the opinion. La Cienga and 303(b) both deal with whether the distribution of sound recordings (audio) constitutes publication of the underlying musical work (notes and lyrics). The New York court conflates the two, concluding from Congressional action to secure common law copyrights in unpublished musical works that Congress intended to secure common law copyrights in sound recordings, which were never questioned in the first place.

(Is this all a bit dry for you? How about this: yesterday’s decision means that The Grey Album is more likely to be infringing Capitol’s common law copyright in The White Album, a pre-1972 sound recording, and the outlandish claims in their cease-and-desist letters have become retroactively slightly less outlandish.)

The court’s opinion is quite scholarly, providing an excellent review of English and early American copyright law. And its result is not particularly surprising; despite hand-wringing over the issue in the opinion, the federal Copyright Act clearly gives states the right to do whatever they want with respect to pre-1972 sound recordings until 2067.

It’s important to remember that this decision is limited to acts of infringement that take place in the state of New York, and infringement in New York consists only of unauthorized reproduction. So perhaps Naxos could do all of its infringement in Hoboken then truck the CDs across the border and sell them in New York. But that’s the trouble with common law copyright — you just don’t know until somebody sues you.