## Facts

- An orchestra leader’s performances were recorded in a record manufacturer’s studios and reproduced on phonograph disc records with the performer’s consent.
- The manufacturer sold the records broadly to the public.
- Earlier records bore a legend stating: “Not Licensed for Radio Broadcast.”
- Later records bore a longer legend limiting use to “non-commercial use on phonographs in homes” and stating the record “shall not be resold or used for any other purpose.”
- A radio station purchased the records through ordinary commercial channels and broadcast the recordings.
- The manufacturer sought to enjoin the broadcasts, asserting (1) a continuing common-law property interest in the recorded performances and (2) enforceable use and resale limits created by the legends on the records.
- The district court granted an injunction barring the radio station from broadcasting the records, and the parties appealed.

## Issues

1. Whether any common-law property right in a musical performance survives the general sale of phonograph records embodying that performance.
2. Whether legends printed on records can, without contractual privity or assent by downstream buyers, impose enforceable limits on purchasers’ use and resale that bar radio broadcasting.
3. Whether recognizing continuing common-law control over publicly sold recordings would improperly create protection outside the federal copyright scheme.

## Decision

- The court reversed the injunction and denied the requested relief.
- Any common-law property interest in the recorded performances was extinguished by the general sale of the records to the public.
- The legends on the records did not create enforceable restrictions against the radio station as a downstream purchaser.
- The radio station’s broadcasts of lawfully purchased records could not be enjoined on the asserted theories.

## Legal Principles

- Voluntary public distribution of tangible copies embodying a performance constitutes a publication that terminates any common-law property right in the performance as fixed in those copies.
- A seller cannot impose post-sale use or resale restrictions on chattels against remote purchasers merely by printing unilateral notices on the goods.
- Enforceable contractual limitations generally require assent and do not run with chattels to bind downstream buyers absent a valid contractual basis.
- Courts will not extend common-law property doctrines to create indefinite protection for recordings where federal copyright law provides no such statutory right.

## Conclusion

The court held that selling records to the public ended any common-law control over the performances embodied in those records and that record-label legends did not bind downstream purchasers, so a radio station that bought the records in ordinary commerce could not be barred from broadcasting them.


RCA Mfg. Co. v. Whiteman, 114 F.2d 86 (2d Cir. 1940)