Lavere

The ultimate question in this case is whether a phonorecord distributed in the late 1930s “published” the underlying work such that the clock started ticking under the Copyright Act of 1909. 1 In La Cienega Music Co. v. ZZ Top, 53 F.3d 950 (9th Cir.1995), we held that it did. However, in 1997 Congress amended the Copyright Act to provide that distribution of a phonorec-ord before January 1, 1978 shall not constitute a publication of the musical work. See 17 U.S.C. § 303 (b). This action (for declaratory relief that a record released in 1938-39 is in the public domain) was filed after La Cienega but before the amendment. Thus, the appeal turns on which controls: La Cienega or the 1997 amendment to the Copyright Act.

ABKCO Music, Inc., whose library includes two Rolling Stones hits — Love in Vain, released in 1969, and Stop Breakin’ Down, released in 1972 — sought a ruling that the versions of these two songs recorded by Robert Johnson and distributed on a phonograph in the late 1930s were in the public domain under La Cienega. The district court determined on summary judgment that the Johnson versions of Love in Vain and Stop Breakin’ Down irrevocably entered the public domain…