Publication and Preemption in Copyright Law: Elegiac Reflections on Goldstein v. California

Abstract

In Goldstein v. California the Supreme Court was asked to help eliminate unauthorized tapes, a parasite on the recording industry. This Article is a critical account of how, in search of a remedy, the Court rediscovered state copyright and rode roughshod over the concept of publication in copyright law. The "tape pirate" takes and sells two separable sets of interests. One is the rights in the musical composition. These are usually embraced by the compulsory licensing scheme that has been part of the federal statute since 1909. The composer and publisher may have enforcement problems, but they have clear enough rights against the pirate. The second set of interests is the rights in the performance or rendition. The sharing of these interests between the actual artists and the producers of sound recordings is in dispute; however our present concern is with the existence and extent of such interests.