The Second Circuit, on June 21, 2004, certified three question to the New York State Court of Appeals relating to common law copyright of recordings made prior to February 15, 1972. The questions are:

1. whether the expiration of the copyright under the law of the United Kingdom (where the recordings were made) precludes any claim under New York's common law of copyright.

2. whether copyright infringement under New York common law requires some or all of the elements of the tort of unfair competition

3. whether a claim of copyright infringement under New York common law is defeated by showing that the allegedly infringing work is a "new product."

The infringing work at issue in Capitol Records, Inc. v. Naxos of America, Inc. consist of restorations of recordings of important classical performances. The decision in the case can be found here.