Academic journal article Harvard Law Review

Copyright - Statutory Damages - Second Circuit Holds That an Album of Music Is a Compilation

Academic journal article Harvard Law Review

Copyright - Statutory Damages - Second Circuit Holds That an Album of Music Is a Compilation

Article excerpt

-- Bryant v. Media Right Productions, Inc., 603 F.3d 135 (2d Cir.), cert. denied, No. 10-415, 2010 WL 3740393 (U.S. Nov. 29, 2010).

The holder of an infringed copyright may pursue a congressionally determined range of statutory damages from the infringer or infringers in lieu of actual damages. (1) A plaintiff choosing statutory damages recovers based on the number of "work[s]" infringed. (2) There is no statutory definition of "work," (3) but "all the parts of a compilation or derivative work constitute one work." (4) A "compilation" is defined as "a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term 'compilation' includes collective works." (5) In several circuits, the "test [for determining what constitutes a work] focuses on whether each expression has an independent economic value and is, in itself, viable." (6) Recently, in Bryant v. Media Right Productions, Inc., (7) the Second Circuit explicitly rejected this definition and announced a new "issuance" test (8)--the first appellate court to do so. (9) The Second Circuit's rejection of the "independent economic value" test in favor of an inquiry into how a work is "issued" (10) does not follow from the Second Circuit's precedent and undermines the centrality of works of authorship to U.S. copyright law.

Anne Bryant, Ellen Bernfeld, and their company, Gloryvision, Ltd., registered the copyrights in the albums Songs for Dogs and Songs for Cats and the copyrights of "at least some of the twenty songs" contained therein. (11) Bryant, Bernfeld, and Gloryvision contracted with Media Right Productions, Inc., on February 24, 2000, to permit Media Right "to market the [a]lbums in exchange for twenty percent of the proceeds from any sales." (12) The contract did not grant Media Right a license to copy either album. (13) On February 1, 2000, Media Right had entered into a contract with Orchard Enterprises, Inc., and granted it the right to distribute eleven albums of music, including Songs for Dogs and Songs for Cats. (14) This contract authorized distribution "throughout E-stores including ... those via the Internet, as well as all digital storage, download and transmission rights." (15) Orchard began making and selling digital copies of the albums in 2004. (16) Total revenue from sales of physical and digital copies of the albums and their constituent tracks between April 1, 2002, and April 8, 2008, equaled $591.05. (17) Media Right should have remitted $331.06 to Gloryvision and its owners but failed to do so. (18)

Gloryvision and its owners sued Orchard, Media Right, and Douglas Maxwell, the president of Media Right, (19) on April 16, 2007, for copyright infringement, trade dress violations, breach of fiduciary duty, breach of contract, and unjust enrichment. (20) Judge Young, sitting by designation, ruled in favor of the plaintiffs on the copyright infringement claim. (21) On the issue of statutory damages, which Gloryvision elected to pursue in lieu of actual damages, (22) the court determined that "statutory damages must be calculated on a per-album basis rather than per-song" because 17 U.S.C. [sections] 504 (c) (1) requires that compilations be counted as only one work for statutory damages purposes. (23) The court cited the statutory definition of "compilation" in a footnote, (24) but it did not analyze why an album of music fits that definition. Because the songs and artwork on each album constituted one copyrighted work for the purposes of statutory damages, there were two works in total. (25) The court ordered Media Right to pay $2000 and Orchard to pay $400 (26)--the absolute minimum in possible statutory damages for the latter and close to the minimum for the former. (27)

Unsatisfied with these damages, the plaintiffs appealed. (28) The Second Circuit affirmed. …

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