Page:Forward v. Thorogood (985 F.2d 604).pdf/2

 record company specializing in blues and folk music. As part of this effort, Forward arranged and paid for two recording sessions for the Band in 1976. The purpose of the sessions was to create a “demo” tape that would capture Rounder Records’ interest. At Forward’s invitation, one of the principals of Rounder Records attended the Band’s second recording session. Other than requesting specific songs to be recorded, Forward’s contribution to the sessions was limited to arranging and paying for them.

Rounder Records was impressed by what it heard; the day after the second session, it arranged to sign the Band to a contract. The Band agreed that Forward could keep the tapes for his own enjoyment, and they have remained in his possession ever since. In 1977, the Band’s first album was released under the Rounder Records label. Forward was singled out for “special thanks” in the album’s acknowledgements. Since then, Thorogood and the Destroyers have released a number of records and gone on to achieve success as a blues/rock band.

The dispute between the parties arose in early 1988, when Forward told the Band that he intended to sell the 1976 tapes to a record company for commercial release. The Band objected, fearing that release of the tapes would harm its reputation; they were, the district court found, of “relatively primitive quality” compared to the Band’s published work. On July 5, 1988, Forward filed suit in the district court, seeking a declaratory judgment that he held the common law copyright to the tapes. Determination of copyright ownership is governed by the common law of copyright because the tapes are unpublished and were recorded in 1976, prior to the January 1, 1978, effective date of the Copyright Act of 1976, 17 U.S.C. § 101 et seq. The Band responded with a counterclaim for declaratory and injunctive relief.

In the district court, Forward advanced a number of theories in support of his claim to copyright ownership. After a five-day bench trial, the district court filed its findings of fact and conclusions of law, ruling that Forward did not hold the copyright under any of the theories he advanced. Forward v. Thorogood, 758 F.Supp. 782 (D.Mass.1991). The court entered judgment for the Band, declaring Thorogood and other Band members to be the copyright owners and permanently enjoining Forward from commercially exploiting the tapes. Forward now appeals.

On this appeal, Forward’s first theory in support of his claim of copyright ownership is based on his ownership and possession of the tapes. According to Forward, ownership of a copyrightable work carries with it ownership of the copyright. Alternatively, he argues that the evidence mandated a finding that the copyright was implicitly transferred to him along with the demo tapes. We find no merit in either claim.

The creator of a work is, at least presumptively, its author and the owner of the copyright. Community for Creative Non-Violence v. Reid, 490 U.S. 730, 737, 109 S.Ct. 2166, 2171, 104 L.Ed.2d 811 (1989). The performer of a musical work is the author, as it were, of the performance. 1 Nimmer § 2.10[A](2)(a), at 2–149. The courts, in applying the common law of copyright, did in a number of cases infer from an unconditional sale of a manuscript or painting an intent to transfer the copyright. 3 Nimmer § 10.09[B], at 10–76.1. This doctrine, often criticized and subject to various judicial and statutory exclusions, id., is the source of Forward’s principal claim. The difficulty for Forward is that even under the doctrine this physical transfer merely created a presumption and the ultimate question was one of intent. Id.

In this case, the district court found that “[n]either the band nor any of its