U.S. v. Taxe

• Decision Date: 08 June 1976
• Docket Number: 74-3471 and 74-3153,Nos. 74-3094,s. 74-3094
• Citation: 540 F.2d 961
• Parties: UNITED STATES of America, Appellee, v. Richard TAXE, Appellant. UNITED STATES of America, Appellee, v. Ronald TAXE, Appellant. UNITED STATES of America, Appellee, v. Geraldine GONZALES, Appellant. UNITED STATES of America, Appellee, v. Richard WARD, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 961

540 F.2d 961

192 U.S.P.Q. 204

UNITED STATES of America, Appellee, v. Richard TAXE, Appellant.

UNITED STATES of America, Appellee, v. Ronald TAXE, Appellant.

UNITED STATES of America, Appellee, v. Geraldine GONZALES, Appellant.

UNITED STATES of America, Appellee, v. Richard WARD, Appellant.

Nos. 74-3094, 74-3471 and 74-3153.

United States Court of Appeals Ninth Circuit.

June 8, 1976.

Rehearing and Rehearing En Banc Denied Aug. 23, 1976.

Donald Saltzman (argued), of Miller, Glassman, & Browning, Beverly Hills, Cal., and Richard L. Rosenfield (argued), of Flax & Rosenfield, Los Angeles, Cal., for appellants.

Chester L. Brown, Asst. U.S. Atty. (argued), Los Angeles, Cal., for appellee.

Before HUFSTEDLER, WRIGHT and GOODWIN, Circuit Judges.

ALFRED T. GOODWIN, Circuit Judge:

Four defendants were charged with multiple counts involving "record piracy". All four were convicted of willful infringement of copyrights for profit, 17 U.S.C. §§ 1(f), 101(e), 104, and conspiracy, 18 U.S.C. § 371. In addition, defendant Richard Taxe was convicted of mail fraud, 18 U.S.C. § 1341. Along with other issues, their combined appeal challenges the 1971 Sound Recording Amendment to the Copyright laws, Act of October 15, 1971 (Pub.Law 92-140, 85 Stat. 391), as further amended by the Act of December 31, 1974 (Pub.Law 93-573, 88 Stat. 1873).

Richard Taxe directed the operation. Stereo records of eight-track stereo tape recordings manufactured by major record companies were purchased on the open market from retail outlets. With specially adapted electronic tape equipment, the commercially acquired records or tapes were re-recorded with changes in one or more of the following respects: the recording speed was increased or decreased; reverberation or echo was introduced; certain portions of the musical sounds were eliminated or reduced in volume; and additional sounds were produced by synthesizers. The eight-track stereo tapes thus created were thereafter sold to the public.

Sales were promoted through national advertising. The advertisements presented the tapes as authentic. The jackets for the individual tapes described the enclosed recordings as "Today's hits as done by your favorite artists. Custom simulated by Sound 8 singers and musicians."

Ronald Taxe was the shipping foreman. Rick Ward was the sales director. Geraldine Gonzales worked in production.

The defendants present a number of issues on appeal, beginning with an attack upon the statute as vague and overbroad.

I.

The 1971 Sound Recording Amendment extends limited copyright protection to sound recordings fixed after February 15, 1972. 1 M. Nimmer, The Law of Copyright § 35, at 246.3 n. 3, and § 109.20 (1975). The copyright owner acquires the exclusive right to duplicate but this does not bar independent fixation by another of other sounds similar to those copyrighted. 17 U.S.C. § 1(f). The defendants assert that the terms "sound recording", "duplicate", and "independent fixation" are unconstitutionally vague.

Sound recordings are works that result from the fixation of a series of sounds. 17 U.S.C. § 26. Fixation, as defined by the Copyright Office, occurs when a complete series of sounds is first produced on a final master recording that is later reproduced in published copies. 37 C.F.R. § 202.15a(b). Duplication, while not statutorily defined, incorporates the rights to copy and record and can be fleshed out by reference to them. 1 Nimmer, § 109.21. In view of the definition of fixation, the statutory language is not so vague that men of common intelligence must necessarily guess at its meaning. ¹ See Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); see also Shaab v. Kleindeinst, 345 F.Supp. 589 (D.D.C.1972).

II.

When instructing the jury, the trial judge defined "independent fixation" as a separate performance, expressly excluding re-recording, even with changes. He went on to instruct that since a new fixation by re-recording with modifications is not an independent fixation, it constitutes infringement. Appellants claim this instruction both misstated the law and removed from the jury a matter within its exclusive province. The government supports the part of the instruction paraphrased above, but objects to language later in the instruction directing the jury to compare tapes and to find no infringement if the appellants' final product was no longer recognizable as the same performance originally recorded.

We believe the instruction went beyond the law insofar as it purported to characterize any and all re-recordings as infringements, but the subsequent inclusion of a comparison test permitted the jury to consider "substantial similarity", and cured any error in the earlier part of the instruction. ² See 1 Nimmer at § 109.21.

Appellants next object to the absence of a detailed instruction on willfulness under the statute. The term was mentioned three times in the infringement instruction and defined in the course of the general instructions. There was no reversible error in the instructions.

III.

Appellants contend that, even if facially constitutional, the statute as applied by the Registrar of Copyrights fails to give fair notice of what is copyrighted. The Registrar permits an album to carry a single notice, yet individual bands (songs) on that album may not be eligible for copyright. Appellants say that mingling of protected and unprotected matter in a single copyright fails to give fair notice and protects uncopyrightable matter.

The copyright of an item containing protectible and unprotectible parts is expressly contemplated in 17 U.S.C. § 3:

"The copyright provided by this title shall protect all the copyrightable component parts of the work copyrighted * * *."

Individual songs are component parts of an entire record album. The copyright of an album protects only the copyrightable songs (those fixed after February 15, 1972). The single notice is adequate since, for $2.00, anyone can obtain a copy of the copyright certificate and determine which songs are protected. See 17 U.S.C. § 215.

As for the certificates, appellants charge that these documents are intolerably vague in spelling out the dates of fixation. Every application for a certificate requests the dates by direction to the applicant to designate "new matter". Such "matter" includes sound recordings first fixed after February 15, 1972. This designation is adequate.

Appellants also object to the instruction that certificates of copyright are prima facie evidence of the dates of fixation. The governing statute provides: "(s)aid certificate(s) shall be admitted in any court as prima facie evidence of the facts stated therein * * *." 17 U.S.C. § 209. In Rohauer v. Friedman, 306 F.2d 933 (9th Cir. 1962), this court accepted and applied the statute. Rohauer was decided when sound recordings were not yet eligible for copyright, and fixation was not one of the certificate's disclosed facts. However, the statute's broad and unequivocal language suggests that the date of fixation is within its terms. While the certificates are hearsay when offered to prove the truth of the date thereon, the certificates should be deemed at least prima facie accurate about the dates of fixation until the contrary appears. There was no known reason for them to be inaccurate. Appellants offered no proof, and have suggested no basis for attacking the validity of any particular fixation dates. Absent a concrete showing of lack of trustworthiness, the admission of the certificates and the attendant instruction was proper. Cf. 28 U.S.C. § 1733, and Fed.Rules of Evid. 803(8).

IV.

The trial judge determined that the copyright notice of a sound recording should be understood to apply to the individual bands or songs. The United States, therefore, submitted twenty six songs as infringed. Appellants argue variance in that the indictment charged infringements of entire albums. Individual components (bands or songs) of a larger work (an album) may or may not be protectible. 17 U.S.C. § 3. The copyright claimed for an album can be infringed by unauthorized duplication of any copyrightable component part. By instructing as he did, the trial judge did not narrow the indictment; he simply correctly determined the nature of the sound recording copyright.

V.

Appellants also charge that the judge functioned as a prosecutor, provided too little time to review jury instructions, and unfairly limited the appellants' time to present their case. None of these charges is supported by the record. The cases cited (United States v. Harris, 501 F.2d 1 (9th Cir. 1974); United States v. Hoker, 483 F.2d 359 (5th Cir. 1973); and Blunt v. United States, 100 U.S.App.D.C. 266, 244 F.2d 355 (D.C.Cir. 1957)) involved conduct significantly more blatant. As for the time pressures, the United States took four weeks to present its case while the defendant took only about two days. But much of the first four weeks included defense activities during the government's case. It is meaningless to count time the way appellants would have us count it in this case. From the earliest stages of the trial, the judge indicated his desire to keep it moving. In a complex case with many issues and parties, such exhortations are frequently necessary. The court did not prevent a full exposition of defense argument. Appellants were not prejudiced.

VI.

In the course of preindictment investigation, government agents had the appellants' tape warehouse under surveillance on January 22, 1974. That evening, eight persons were observed hurriedly loading hundreds of boxes into two trucks. When the trucks departed, the agents followed them. The trucks separated for awhile, then reunited. The agents believed the drivers were attempting to determine whether they were being followed. Appellants were aware that the FBI was investigating their activities. When the trucks subsequently stopped, the agents approached and identified...