Chapter 6: Conclusion
During the 1930s the Gramophone Company, now EMI Records, made a series of recordings in England of classical pieces by three world-renowned artists, Yehudi Menuhin, Pablo Casals, and Edwin Fischer, the copyright of which, under UK law had expired by 1990.1 In 1996, EMI (the parent company of Capitol Records) agreed that Capitol would have an exclusive licence to exploit these earlier recordings in the US. At the same time, the budget price classical music publisher, Naxos, located copies of these recordings, and having undertaken its own restoration process, made them available for sale in 1999. Capitol commenced an action alleging infringement of their common law copyright in the recordings, as well as unfair competition, misappropriation and unjust enrichment. The District Court granted a summary judgment to Naxos. On appeal, the Second Circuit considered that the case raised several unsettled issues of New York law, and noting that under federal law ‘it is entirely up to New York to determine the scope of its common law copyright with respect to pre-1972 sound recordings’, certified the following question to the Court of Appeals: ‘[I]s Naxos entitled to defeat Capitol’s claim for infringement of common law copyrights in the original recordings?’2 In Capitol Records v. Naxos of America (2005) (Capitol Records) the Court of Appeals considered that Naxos could not.3 There are many points of interest within the case worthy of exploration, however, central to the decision is the question of the existence and nature of the common law copyright...
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