All good points, Michael. Thanks for pointing out those very pertinent
facts. There are a great many "odd facts" involved in the Naxos decision,
when you dig into it. The day that decision was rendered was a shameful
one for the NY Court of Appeals, which was clearly looking for an excuse to
go on a "holiday" with state law copyright law. I am fearful of more of
the same with the case brewing in CA over the use of pre-1972 recordings on
satellite radio.

And thanks for the Oliver Wendell Holmes reference from Loftus Becker, that
appeared as a new post to the list but related to this string.

Best,
John Haley




On Mon, Nov 3, 2014 at 2:41 PM, Michael Shoshani <[log in to unmask]
> wrote:

> On 11/3/2014 12:29, John Haley wrote:
>
>> The NY Court of Appeals (where I myself have argued and won an
>> important case) went to great lengths to justify its nutty decision (it
>> finds NY state law copyright protection applicable to Casals recordings
>> made in the 1930's in London, which had long been in public domain in the
>> UK--the recordings themselves had nothing to do with NY) by citing a lot
>> of
>> precedent, but when you examine that precedent, you see that it has not
>> been accurately cited or characterized, having been substantially
>> "reinterpreted" to justify the desired result. Frankly, what happened
>> here
>> was that Naxos seems to have got way "out-lawyered." I don't know any of
>> the lawyers involved in that case.
>>
>
> The thing that's always struck me about this case is that it was brought
> by Capitol Records, the then-US arm of the owners of the original
> recording, EMI. (EMI is now Warner Music, but that's recent and I digress.)
>
> Capitol Records did not even exist at the time these Casals records were
> made. Capitol started in 1942; the original His Master's Voice recordings
> would have been issued in the United States (if in fact there were issued
> here) by Victor under a license that went back to the beginning of the 20th
> century. There would have been no actual copyright involved at that time,
> because while the Berne Convention did cover audio recordings, the United
> States was not a signatory to the Berne Convention until 1989 - ironically,
> pretty much past the point at which all 1930s recordings had passed into
> public domain in the UK.
>
> Michael Shoshani
> Chicago
>