## Facts

- Marion Rosette composed and adapted children’s songs and sold phonograph records through her company, Lincoln Records Co.
- Rosette held statutory copyrights for many compositions; for others, she claimed continuing common-law rights on the theory they were unpublished.
- Around 1964, Rosette discovered Rainbo Record Manufacturing Corp. and Jack Brown were manufacturing and distributing records that duplicated her compositions without authorization.
- Rosette sued under the Copyright Act of 1909 seeking injunctive relief, damages, and attorneys’ fees for infringement of statutory and common-law copyrights in 33 compositions.
- Defendants asserted defenses including prior publication (arguing Rosette’s sales of records published the works), limitations, noncompliance with statutory formalities, lack of ownership as to some works, and that Rainbo was only a “record presser,” not a statutory “manufacturer.”
- After a bench trial, the court entered an interlocutory liability judgment and ordered an accounting before a Special Master.
- Following the accounting, the court entered a final judgment awarding Rosette $14,300 in damages and related relief.

## Issues

1. Whether commercial distribution of phonograph records embodying musical compositions constitutes “publication” of the underlying musical scores under the 1909 Act.
2. Whether phonograph records should be treated as “performances” (not causing publication) or as tangible copies whose sale effects publication.
3. Whether defendants’ manufacture and sale of the records infringed Rosette’s rights once the works were treated as published and within (or subject to) the statutory copyright scheme.

## Decision

- The court held that commercial distribution of phonograph records of the compositions constituted publication of the underlying scores under the 1909 Act.
- The court rejected the argument that record sales were mere “performances” that left the compositions unpublished and protected indefinitely by common law.
- The court found defendants liable for infringement based on their unauthorized manufacture and sale of records embodying Rosette’s works.
- After an accounting, the court awarded Rosette $14,300 in damages and other relief.
- The judgment was affirmed on appeal.

## Legal Principles

- Under the 1909 Act, commercial distribution of material objects embodying a musical composition can constitute publication of the underlying work.
- Publication terminates common-law copyright protection for an unpublished work and places the work within the statutory regime, subject to statutory formalities and remedies.
- Phonograph records are treated as fixed, tangible embodiments of a work for publication analysis, not as transient performances.
- Unauthorized manufacture and distribution of records embodying copyrighted compositions can constitute infringement.

## Conclusion

The court ruled that selling phonograph records to the public published the underlying musical compositions under the 1909 Act, preventing reliance on ongoing common-law protection and supporting infringement liability for defendants’ unauthorized duplication and distribution, with damages awarded after an accounting.


Rosette v. Rainbo Record Mfg. Corp., 354 F. Supp. 1183 (S.D.N.Y. 1973)