412 U.S. 546 (1973)
In 1971 the State of California filed an information charging petitioners in 140 counts with violating California Penal Code § 653h.1 The charges alleged that between April 1970 and March 1971 petitioners had copied several musical performances from commercially sold recordings without permission of the owner of the master record or tape.2 Petitioners moved to dismiss on constitutional grounds; the motion was denied.3 They then entered nolo contendere pleas to ten counts and the remaining counts were dismissed.4 The Appellate Department of the California Superior Court upheld the statute.5 After exhausting state appellate remedies, petitioners sought review in the Supreme Court.6
Petitioners operated a business that purchased single retail copies of popular tape or phonograph recordings produced and marketed by recording companies with which they had no contractual relationship.7 At their plant they reproduced the recordings onto blank tapes, wound the tapes onto cartridges, attached labels stating the title and performing artists exactly as they appeared on the originals, and packaged the cartridges for distribution to retail outlets where they competed directly with the original recordings.8 Petitioners made no payments to the artists, to trust funds established for their benefit, to producers, technicians, or other personnel who created the originals, or for use of the artists' names or album titles.9
The California statute makes it a misdemeanor to transfer sounds recorded on a phonograph record, tape, or other article onto another record or tape with intent to sell the duplicate, unless the transferor first obtains consent from the owner of the master recording from which the sounds are derived.10 The statute applies only to the specific recorded performance on the master; it does not restrict use of the underlying music, lyrics, or arrangement, and it permits hiring musicians or even the original artists to create an exact imitation.11
While petitioners' case was pending in state courts, Congress enacted Pub. L. 92-140, which extended federal copyright protection to sound recordings fixed, published, and copyrighted on or after February 15, 1972, and before January 1, 1975.12 Section 3 of the amendment expressly provided that nothing in the amended Title 17 was to be applied retroactively or construed as affecting rights with respect to sound recordings fixed before February 15, 1972.13 All recordings petitioners copied had been fixed prior to that date.14
Whether California Penal Code § 653h conflicts with Art. I, § 8, cl. 8 of the Constitution by establishing a state copyright of unlimited duration?15
The Copyright Clause empowers Congress to secure exclusive rights to authors for limited times to promote progress in science and useful arts.16 This durational limitation restricts only federal action.17 It does not preclude states from granting copyrights of unlimited duration where the Constitution neither expressly grants the power exclusively to Congress nor renders concurrent state authority repugnant.18
No. The established facts show that California Penal Code § 653h grants protection of unlimited duration solely to the specific recorded performance on master tapes or records.19 The constitutional text limits only Congress.20 State protection remains territorially confined so that citizens of non-protecting states may still copy within their borders.21 No inevitable conflict arises that would compel an inference of exclusive federal control.22 The Court therefore upheld the statute against the duration challenge.23
California Penal Code § 653h does not conflict with Art. I, § 8, cl. 8 by reason of its unlimited duration.24
Whether the California statute interferes with federal copyright policies under 17 U.S.C. § 1 et seq. and decisions such as Sears, Roebuck & Co. v. Stiffel Co. by prohibiting copying of works not protected by federal copyright?25
Federal copyright statutes and the Supremacy Clause preempt state law only when Congress has affirmatively protected a category of writings or has deliberately left it free from all restraint.26 Where Congress has left the field unattended, as with sound recordings fixed before February 15, 1972, states remain free to act without clashing with federal objectives.27
No. The facts establish that all recordings petitioners copied were fixed before February 15, 1972.28 The 1909 Act and its amendments did not extend federal copyright to sound recordings themselves.29 The 1971 amendment expressly declined retroactive application.30 Congress therefore drew no balance between protection and free competition for these recordings.31 The California statute, which merely prohibits unauthorized duplication of the master performance while leaving the underlying composition free, does not disturb any federal policy and survives Supremacy Clause scrutiny.32
The California statute does not interfere with federal copyright policies.33
Related opinions on this issue
Joined by Justices Brennan And Blackmun
Justice Douglas argued that prior to February 15, 1972, sound recordings had no copyright protection.34 He stated that Sears and Compco make clear that the federal policy is to have national uniformity in patent and copyright laws.35 California's law promotes monopoly while federal policy promotes it only when a copyright is issued.36
Federal law limits monopoly to 28 years plus renewal while California extends it into perpetuity.37 He would reverse the judgment below.38
Joined by Justices Brennan And Blackmun
Justice Marshall argued that Congress intended to exercise its full constitutional power either by protecting all writings or by leaving unprotected writings open to free competition.39 He read the rule of construction from Sears and Compco to treat congressional silence on sound recordings as a determination that competition should prevail.40 He noted Congress's history of prompt action when technological change made protection advisable.41
In his view, distaste for record piracy should not override the presumption that states may not impose additional restraints on reproduction of pre-1972 recordings.42
Whether 17 U.S.C. § 2 authorizes state protection for sound recordings that have been released to the public?43
Section 2 of the Copyright Act preserves state common-law and equitable protection for unpublished works.44 It does not limit state authority over published works that Congress has chosen not to bring within the federal statutory scheme.45 States retain independent power to protect such works when no federal preemption applies.46
No. The facts demonstrate that the recordings petitioners copied had been released to the public and thus published under federal law.47 Yet the Court did not rest its holding on § 2.48 Instead it concluded that states possess inherent authority, reserved under the federal system, to protect master recordings regardless of publication status when Congress has left the category unattended.49 Because no preemption exists, the statute is valid irrespective of whether § 2 supplies affirmative authorization.50
Section 2 does not preclude and the state statute remains enforceable even though the recordings had been released to the public.51