(c) 1995 Copyright The News and Observer Publishing Co.
(c) 1995 Bloomberg
WASHINGTON (Oct 10, 1995 - 10:54 EDT) -- The Supreme Court today
decided to sit out a simmering copyright fight that the music industry
claims could be worth hundreds of millions of dollars in annual
royalties on almost every American song written before 1978.
The high court today rejected an appeal in a case that started as a
relatively obscure squabble about a 47-year-old blues recording, but
could yet escalate into a battle royal with huge stakes for the
songwriters and music companies.
Music industry groups say an appeals court decision in the case raises
legal questions that could wipe out copyrights for the life's work of
thousands of songwriters, and countless songs that make up most of the
inventory at major music companies.
Considering the stakes, unless the lower courts change their tune, the
dispute seems likely to return to the Supreme Court later.
The issue hit the high court in a lawsuit against the Texas rock group
ZZ Top, filed by an associate of blues legend John Lee Hooker. Bernard
Besman, a record company executive, claims that he co-wrote Hooker's
song "Boogie Chillen," which was first recorded in 1948.
Besman charged that ZZ Top's 1973 hit, "LaGrange," illegally mimicked
Boogie Chillen's distinctive bass guitar line, which has been widely
copied in blues-rock "boogie" music.
Besman's suit sparked frantic concern in the music world when two lower
courts appeared to rewrite the industry's understanding of copyright
protection in the decades before 1978, when a new copyright law took
effect.
A trial court and a federal appeals court both said songs that were
performed on phonograph records before 1978 lost all legal protection
if the records were released without a copyright notice attached, and
if sheet-music versions of the songs were not copyrighted beforehand.
The language that prompted such concern, however, appeared in almost
passing hypothetical references that had little to do with the ultimate
decision about Besman's claims against ZZ Top. That fact may have
prompted the Supreme Court to wait for a case that squarely presents
the issue.
Third Claim Pending
The dispute between Besman and ZZ Top could yet provide that case. The
lower courts so far have only ruled on two of Besman's three copyright
infringement claims against the group. The third, which was sent back
to a trial court for more proceedings, might more directly address the
broader question of pre-1978 copyright protection.
Besman claimed that ZZ Top's LaGrange violated copyrights on three
different versions of Boogie Chillen: The original 1948 recording by
Hooker, another rendition on a 1950 Hooker record, and a 1970 version
that Hooker recorded with the rock group Canned Heat.
Under a 1909 copyright law, creative works enjoyed common-law copyright
protection, without the need for formal registration, unless they were
published and widely distributed without a copyright notice attached.
The central issue is whether including a song on a record amounts to
publication of a work.
Before the recent court decisions in the ZZ Top case, the music
industry said it acted for decades under the prevailing legal
presumption that recording a song was not the equivalent of
publication, and that records didn't need copyright notices.
As a result, many if not most songs were recorded without concern for
whether they had been copyrighted, the industry said.
A decision that the compositions were released into the public domain
unless a record had a copyright notice attached, the industry said,
could prompt thousands of lawsuits, and create massive practical
problems in determining whether thousands of records, dating back
decades, included copyright notices.
ZZ Top, a Texas trio known for hard-driving boogie music, fedoras, and
wearing long beards, denied Besman's plagiarism allegation. The group,
made up of Billy Gibbons, Dusty Hill and Frank Beard, also dispute
Besman's claim to authorship.
The broader question of copyright protection for pre-1978 songs has not
yet been crucial to the outcome of the ZZ Top case because there was no
evidence -- one way or the other -- about whether Hooker's records were
stamped with copyright notices.
A federal district court and an appeals court both ruled against
Besman's claims to copyright for the 1948 and 1950 recordings of
"Boogie Chillen" for a different reason. Even if there was a copyright
notice on the records, the courts said, release of the recordings
amounted to publication that provided common-law copyright protection
for only 28 years, unless the writer made an application for renewal.
Expired Copyrights
Because those copyrights were not renewed, they would, in any case,
have expired in 1976 and 1978. Besman's suit was not filed until 1991.
The appeals court sent the dispute about the 1970 Canned Heat version
of "Boogie Chillen" back to the trial court for more proceedings to
determine whether there was a copyright notice on the recording. If
there was not, and if the courts stick to their opinion that the
recording placed "Boogie Chillen" in the public domain for that reason,
that part of the case could provide the basis for another bid to the
Supreme Court.
The case is La Cienega Music Co. v. ZZ Top, 95-72.