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Rosette v. Rainbo Record Manufacturing Corp.

354 F. Supp. 1183 (1973)

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Rosette v. Rainbo Record Manufacturing Corp.

United States District Court for the Southern District of New York

354 F. Supp. 1183 (1973)

Facts

Marion Rosette (plaintiff) was a composer of children’s songs who recorded and sold phonographs containing recordings of her compositions. Rosette obtained statutory copyrights on the actual underlying compositions—i.e., the sheet music—pursuant to the Copyright Act of 1909. Some of the statutory registrations were obtained prior to Rosette’s sale of the related phonographs, and some were obtained after the sale of the related phonographs. The act also allows a composer to retain common-law copyright protection to prevent others from using the composer’s unpublished work. Around 1964, Rosette discovered phonograph records produced by Rainbo Record Manufacturing Corporation (Rainbo) (defendant) that contained recordings that exactly duplicated several of Rosette’s compositions. Rosette filed suit against Rainbo for both common-law and statutory copyright infringement. Rosette asserted that her recordings of her compositions on phonographs constituted performances rather than publications and therefore that her underlying compositions remained unpublished and thus protected under both statute and common law. Rainbo argued that Rosette’s recordings were publications rather than performances because they were permanently fixed instead of being ephemeral like traditional performances.

Rule of Law

Issue

Holding and Reasoning (Gurfein, J.)

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