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The New York Court of Appeals will journey back to its common law roots to determine whether classical 1930s-era recordings produced in England and in the public domain overseas are protected by copyright in New York. Today, the court is slated to hear Capitol Records Inc. v. Naxos of America Inc., 30, a case of common law copyrights to the recordings of cellist Pablo Casals, violinist Yehudi Menuhin and pianist Edwin Fischer. The case made its way to Albany via Foley Square, where the 2nd U.S. Circuit Court of Appeals certified three questions to the state’s highest court: � Whether the expiration of copyrights in the United Kingdom necessarily means that the New York common law copyrights have expired as well. � Whether a successful claim under New York common law copyright law requires evidence of an unfair competition tort. � Whether an infringement claim in the Empire State is defeated by proof that the alleged infringer produced a “new” product as opposed to a mere copy of the plaintiff’s existing product. Entertainment law experts have said that the outcome of the case will impact scores of recordings, eventually including those by the Beatles. That is because copyright law in England and much of the European Union protects sound recordings for only 50 years while the United States protects such work for 95 years. If New York law does not control, the earliest Beatles recordings could be re-issued by anyone who wishes to do so starting in 2013. CLASSIC PERFORMANCES The Capitol Records case involves classical performances recorded in the United Kingdom during the 1930s. EMI Records, formerly The Gramophone Co. Limited, licensed to Capitol Records exclusive rights to exploit the original recordings in the United States in 1996. However, in 1999, Naxos of America Inc. started selling its own restorations of the Casals, Menuhin and Fischer recordings, directly competing with Capitol. Capitol responded with a lawsuit alleging common law copyright infringement, unfair competition, unjust enrichment and misappropriation of property. Although all the causes of action were state claims, they were litigated in federal court on diversity grounds. There is no federal copyright protection for pre-1972 recordings. Southern District Judge Robert W. Sweet found that Capitol has no common law copyright protection in New York, leading to an appeal to the 2nd Circuit and the three certified questions to the Court of Appeals. Philip Allen Locovara of Mayer Brown Rowe & Maw in Manhattan will argue for Capitol Records. Maxim H. Waldbaum of Schiff Hardin in Manhattan represents Naxos.

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