Roy B. Oser, Esq.

The year was 2005. The clerk in the classical music department of J&R, a well-known New York City music and electronics store, was carrying a clipboard listing CDs to be pulled off the shelves. What was going on?

The CDs in question had all been issued by Naxos, a relatively new classical label founded by Hong Kong entrepreneur and music lover Klaus Heyman. Naxos started out as a purveyor of “budget” classical CDs, often featuring little-known artists and obscure repertoire, but grew quickly to challenge and even surpass the established “major” classical labels in all areas of classical recording.

Why were Naxos CDs being withdrawn from sale? I wondered. Was it a case of censorship of sexually explicit or otherwise objectionable lyrics? This is rarely a problem in the conservative world of classical music. Mozart made dirty jokes, but they didn’t find their way into his music. No, there weren’t any First Amendment issues here.

Was it due to defective or broken CDs? This was a more likely explanation, but not the correct one. The CDs being removed were all reissues of historic recordings. I noticed on the clerk's list a CD of Beethoven piano sonatas recorded in the 1930s by the great German pianist Artur Schnabel, as well as Bach cello suites played by the great Spaniard Pablo Casals and other old recordings.

The true explanation for this recall lies in the history of recorded music, and in the intricacies of U.S. copyright law.

Fellow baby boomers will recognize the title of this article as a line in Don McLean’s famous 1971 hit, “American Pie.” “The day the music died” was February 3, 1959, when rock ‘n’ roll stars Buddy Holly, Ritchie Valens and J.P. ‘Big Bopper” Richardson died in an airplane crash near Mason City, Iowa. The approaching 50th anniversary of that day has more than sentimental significance.

Under the laws of the United Kingdom and other European nations, copyright in sound recordings expires after 50 years. This means that anything recorded in Europe at the same time as “That’ll Be the Day,” “La Bamba” and “Chantilly Lace,” hits for Holly, Valens and Richardson, respectively, is already in the European public domain. “Please Please Me,” the Beatles’ first number one hit, was recorded in 1962 and will reach the public domain in their native Liverpool in 2012.

In the classical music world, many famous recordings are already in the European public domain. In the era of acoustic recordings that began in the 1880s, recording entire orchestras was difficult, but individual singers could be recorded tolerably well. Enrico Caruso began churning out hugely successful recordings of famous opera arias in 1907.

In the mid-1920s, electric recordings replaced acoustic ones, greatly improving the quality of recorded sound. Suddenly, famous performers such as pianist Arthur Rubinstein, who had made no acoustic recordings because of their poor quality, could be heard in every living room.

The invention by Columbia Records of the 33 1/3 rpm Long Playing Record, or LP, in 1948 meant that even most long symphonies could fit on one or at most two discs. The first complete recording of Mahler’s lengthy Second Symphony, made on 78 rpm discs in 1924, took up 22 sides, so the LP was indeed a major improvement for consumers. The classical recording industry boomed in the 1950s with stars such as opera diva Maria Callas, reaching a peak that is still considered the golden age by many classical music fans.

The freedom of these classical recordings from copyright restrictions, at least in Europe, was not lost on Naxos, which established a division called Naxos Historical to reissue famous classical music recordings made in Europe, and especially in England, over 50 years earlier. This made sense under European copyright law, but what about selling these CDs in America?

Capitol Records is the modern-day heir to many of the old European record companies that had originally issued the historic recordings now being reissued by Naxos. In 2002 Capitol sued in federal district court in New York to stop the distribution of Naxos Historical recordings in New York. Oddly enough, the fundamental legal issues in Capitol v. Naxos were ones of state and not federal law.

Originally, sound recordings were not protected under federal copyright law, and states had to develop their own law in this area. In 1976 and 1998, Congress enacted legislation providing for a total of 95 years of copyright protection for sound recordings. The federal law supersedes or “preempts” state law. However, this federal copyright protection applies only to recordings made after February 15, 1972. Earlier recordings can be protected under state copyright law until 2067.

Under international copyright conventions, the term of copyright in the nation where a work is first published is generally applied by other nations that would otherwise grant a longer period of protection. However, these conventions do not apply to sound recordings.

The key question in Capitol v. Naxos was this: If the copyright of a sound recording has expired in its country of origin, has it expired under New York copyright law? In 2005, the federal court in which the case had been brought turned to New York’s highest court, the Court of Appeals, for an answer to this question. The Court of Appeals answered no.

Under New York State’s copyright law, the court held, sound recordings were protected indefinitely, even if their copyright had expired in their country of origin. Neither Edison’s earliest cylinders, first sold to the public in 1887, nor the European offerings from such companies as Gramophone, established in England in 1897, would enter the public domain in New York until the federal law preempted the state law in 2067.

Technically, the Capitol v. Naxos decision applies only in New York. But there are many grounds on which a copyright holder suing for copyright infringement in another state could succeed in having the court apply New York law.

The Capitol v. Naxos decision has had a profound impact on sales of historic classical recordings in the United States. Many of these recordings, from Naxos and from many other sources, are now available only in Europe. The court’s decision has been controversial, not least because it creates a major inconsistency between the copyright laws of the United States and those of Europe.

The modern practices of file sharing and uploading and downloading music on the Internet make it quite difficult to enforce the more stringent American rules. Europeans happily trade and share these historic recordings, and they can easily be bought on the Internet, even in America, from many retailers. As a practical matter, can Americans be excluded? Is the market in historic classical recordings large enough to make it worthwhile for copyright holders to enforce these rules? Maybe not, but what happens when the Beatles enter the European public domain? We will soon find out.