Does Registration Mean Registration: When Can Copyright Holders Sue?

Background

Copyright law protects the exclusive rights of creators of works—like novels, songs, computer software, and even fictional characters. These rights include the distribution and reproduction of copyrighted works and the power to assign or transfer those rights. In the United States, the copyright symbol “©” may serve to provide notice to potential infringers that the creator’s work is protected. But the symbol does not mean that the federal government specifically granted it copyright protections. Copyrights do not need to be registered with the federal government to be protected. Original works are under copyright protection once created and “fixed in a tangible medium of expression.” The owner of a copyright may register it at any time during (or before) the term of the copyright – usually 70 years after an individual creator’s death.

Issue

While registration is not required for copyright protection, it is required for filing a lawsuit to enforce a copyright. Before the enactment of the Copyright Act of 1976, copyright law varied from state to state and so did the conditions necessary for copyright enforcement. The act created a uniform system of copyright enforcement. Section 411 of the Copyright Act provides that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” The statute prescribes steps in the registration process but does not define when “registration” has occurred to allow a copyright owner’s infringement suit. Courts are split on whether “registration” occurs upon submission of an application for registration (the “application approach”) or upon approval of the registration application (the “registration approach”).

The Split

In Cosmetic Ideas v. IAC (2010), the Ninth Circuit adopted the application approach, which relies more on the purpose of the statute than on a plain language interpretation of the text. In trying to interpret “registration” under § 411 of the Copyright Act, the Ninth Circuit started with the plain language of the statute and referred to § 101 of the Act which defines “registration” as “a registration of a claim in the original or the renewed and extended term of copyright.” The court concluded that the definition was “unhelpful” and provided no guidance in interpreting the meaning of “registration.” The court then examined the statute as a whole, finding ambiguity—it then concluded that the Act’s “plain language” unequivocally supported either interpretation, and that it must “go beyond . . . the plain language to determine which approach better carries out the purpose of the statute.” Ultimately, the court adopted the application approach, finding that its efficiency accomplished the central purpose of registration – a robust national register of existing copyrights.

On the other hand, in Fourth Estate Pub. v. Wall-Street.com (2017), the Eleventh Circuit adopted the registration approach. In Fourth Estate, the court based its reasoning primarily on the language of the Copyright Act. It reasoned that the text “makes clear” that the registration approach is correct. The Eleventh Circuit rejected appeals to the legislative history and the policy of the Act, finding that the Act’s words “are unambiguous” and no further inquiry is required.

Looking Forward

Despite the registration requirement’s prior treatment by circuit courts as jurisdictional, the US Supreme Court held in Reed Elsevier, Inc. v. Muchnick (2010) that not fulfilling the registration requirement does not deprive a federal court of subject matter jurisdiction over a case. However, the Court in Reed Elsevier did not tackle the circuits’ different approaches to defining registration. A resolution may nonetheless be on its way thanks to the Fourth Estate case. A petition for certiorari to the Supreme Court filed in October 2017 is currently pending. The Court has invited the Solicitor General to file a brief expressing the views of the United States on the case. There is a good chance that the Supreme Court will grant certiorari given that the case involves statutory interpretation and there is a clear circuit split. Otherwise, an amendment to the statute may be needed to resolve the issue.

 

Copying Music is Not Vogue

The Issue

Have you ever listened to a song and recognized the melody? Perhaps you have heard something similar in another song? Your first thought might be “they copied my favorite artist!” And you might be right. However, if the appropriate license is obtained, it is completely legal.

Sampling is the “actual physical copying of sounds from an existing recording for use in a new recording, even if accomplished with slight modifications such as changes to pitch or tempo.”[1] Sampling is a common occurrence in the music industry. After all, there are only so many combinations we can come up with using nine notes. This is why sampling music is allowed when it licensed.

Now, try to remember if you’ve ever thought the same way about a particular note or a sound in a song. Probably harder to discern. So, what happens if a sound is sampled? Does that violate copyright laws? The Circuits are split.

The Split

The Sixth Circuit

In Bridgeport Music, Inc. v. Dimension Films, the Sixth Circuit took a hard “[g]et a license or do not sample” approach. In doing so, it created a bright-line rule:

For copyrighted sound recordings, any unauthorized copying constitutes infringement, no matter how trivial.[2]

The Court took a “literal reading” approach towards its interpretation of §§ 114(a) and 106 of Title 17 of the United States Code, concluding that while imitating or simulating “the creative work fixed in a recording” is permissible, making an actual copy of any of its contents not. To support its reasoning, the Court made an analogy to pirated music: “If you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole.” The Court answered no.

Furthermore, the Sixth Circuit rejected a de minimis analysis for the following reasons:

  1. Adopting a de minimis analysis would require employment of “mental, musicological, and technological gymnastics.”
  2. Artists and recording companies have previously sought licenses “as a matter of course.”
  3. The record industry can work out its own guidelines.
  4. The new rule “should not play any role in the assessment of concepts such as ‘willful’ or ‘intentional’” in cases currently before the courts or in those already decided.
  5. “[T]here is no Rosetta stone” in interpreting the statute. As previously stated, a literal approach was taken to reading the statue. The Court, therefore, did not refer to legislative history because digital sampling was not done in 1971. Accordingly, if the record industry wanted a change, they can ask Congress for “a clarification or change in the law.”[3]

The Court, therefore, held that no de minimis inquiry was needed—where there was no authorization, infringement was established.

The Ninth Circuit

The Plaintiff in VMG Salsoul, LLC v. Ciccone alleged that a horn hit was sampled from his song “Ooh I Love It (Love Break)” (“Love Break”) in “Vogue” by Madonna. Interestingly, the person who recorded “Love Break” also recorded “Vogue” with Madonna. The horn hits are between 3:11 and 4:38, and from 7:01 to the end, at 7:46 in “Love Break” and at 1:14, 1:20, 3:59, 4:24, 4:40, and 4:57 in “Vogue.”

See if you can spot them:

https://www.youtube.com/watch?v=a_YmUoQKJRw

https://www.youtube.com/watch?v=GuJQSAiODqI

Here, the Ninth Circuit took a different approach.

First, the Court looked at the statute and concluded that Congress intended to limit, as opposed to expand, the rights of copyright holders.[4] In addition to its differing approach to statutory interpretation, the Ninth Circuit’s decision also was based on the fact that a de minimis exception has been applied “across centuries of jurisprudence.”[5] Thus, it was applicable in this dispute, directly in conflict with the Sixth Circuit’s holding.

Next, the Court looked to legislative history:

“…infringement takes place whenever all or any substantial portion of the actual sounds that go to make up a copyrighted sound recording are reproduced in phonorecords by … any … method, or by reproducing them in the soundtrack or audio portion of a motion picture or other audiovisual work. Mere imitation of a recorded performance would not constitute a copyright infringement even where one performer deliberately sets out to simulate another’s performance as exactly as possible.”[6]

Finally, the Court concluded that the legally protected interest is “the potential financial return from his compositions which derive from the lay public’s approbation of his efforts.”[7] “If the public does not recognize the appropriation, then the copier has not benefitted from the original artist’s expressive content. Accordingly, there is no infringement.”[8]

Therefore, in the Ninth Circuit, the “de minimis” exception does apply to copyrighted sound recordings. Put simply, if a lay person can’t recognize the similarity, there is not infringement.

Looking Forward

Depending on which jurisdiction you’re in, sampling a specific sound in a song may get you in trouble for copyright infringement. So, which approach is better: an authorization requirement for any sampling of a sound or just sounds the lay public can recognize?

[1] VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 875 (9th Cir. 2016).

[2] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).

[3] Bridgeport Music, 410 F.3d at 805.

[4] VMG Salsoul, 824 F.3d at 883.

[5] Id.

[6] H.R. Rep. No. 94-1476, at 106 (1976), reprinted in 1976 U.S.C.C.A.N. at 5721 (emphasis added).

[7] Arnstein v. Porter, 154 F.2d 464, 473 (2d Cir. 1946).

[8] VMG Salsoul, 824 F.3d at 881.