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

Harvard Law Review, January 2011 | Go to article overview

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


-- 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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.