Waring v. WDAS Broadcasting Sta

In Waring v. WDAS Broadcasting Sta. (327 Pa. 433, 194 A. 631 1937), the plaintiff, a conductor and owner of an orchestra, had contracted with a phonograph company to produce recordings of the orchestra's performances to be sold to phonograph dealers and the public. To avoid interfering with a different contract the orchestra had for weekly radio broadcasts of live performances, the record labels contained a printed warning that they were "not licensed for radio broadcast." (327 Pa. at 436, 194 A. at 633.) The plaintiff sued to prevent the owner of a radio station from broadcasting the recorded performances over the airwaves. The Supreme Court of Pennsylvania found that the records were protected by state common law. Beginning with the premise that sound recordings were not copyrightable under federal law, the court explained: "at common law, rights in a literary or artistic work were recognized on substantially the same basis as title to other property. Such rights antedated the original copyright act of 8 Anne c. 19, and, while it has been uniformly held that the rights given by the act supersede those of the common law so far as the act applies . . . the common-law rights in regard to any field of literary or artistic production which does not fall within the purview of the copyright statute are not affected thereby" (327 Pa. at 439, 194 A. at 634). The court declared that a performer who transforms a musical composition into a sound product creates "something of novel intellectual or artistic value and has undoubtedly participated in the creation of a product in which he is entitled to a right of property" (327 Pa. at 441, 194 A. at 635). Even if the common law offered protection to sound recordings only to the point of first publication, the court held that the sale of records was not a publication of the work that operated to divest the orchestra of its common-law property right because the phonograph records had been marked "not . . . for radio broadcast," which indicated that the manufacturer did not intend, by the sale alone, to make the records the " 'common property' " of the public (327 Pa. at 443).