Bridgeport Music v. Dimension Films - Indiana University School of ...

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440 INDIANA LAW JOURNAL [Vol. 81:435 B. Fixed in a Tangible Medium In order for a work to be copyrightable, it must first be fixed, that is, when “its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” 40 Fixation is a constitutional requirement, flowing from use of the word “Writings” in Clause 8. 41 This prerequisite is, for the purposes of this Note, relatively uncontroversial, especially in relation to sound recordings, which are fixed by definition. 42 C. Original Works of Authorship It is not enough, of course, for a work to simply be fixed—it must also be original. Originality, like fixation, is a constitutional requirement. 43 In drafting the 1976 Copyright Act, Congress intentionally left “original” undefined in the statute, in order to incorporate the extended body of case law interpreting the subject. 44 The Supreme Court has stated that “[t]he sine qua non of copyright is originality.” 45 In order to be considered original, the work must (1) be “independently created by the author,” and (2) possess “at least some minimal degree of creativity.” 46 The creativity threshold is extremely low, and “[a]lthough slavish copying involving no artistic skill whatsoever does not qualify a showing of virtually any independent creativity will do.” 47 Additionally, creativity is not synonymous with novelty. While novelty is required, for example, in order to register a patent, novelty is not required for copyright purposes, and a work may be considered original even if it borrows common themes or ideas from other works. 48 Originality is assessed by looking at the work as a whole, thus, “[t]he mere fact that a work is copyrighted does not mean that every element of the work may be protected [in and of itself] . . . . [C]opyright protection may extend only to those components of a work that are original to the author.” 49 This phenomenon is perhaps most striking in music, and courts recognize that there are a “limited number of notes and chords available to composers,” and therefore “common themes frequently reappear in various 40. 17 U.S.C. § 101 (2000). The term “phonorecord” indicates an object on which a sound is fixed; “copy” refers to everything else. Id. 41. See U.S. CONST. art. I, § 8, cl. 8; Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346–47 (1991) (citing Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884); The Trade-Mark Cases, 100 U.S. 82 (1879)). 42. See 17 U.S.C. § 101 (2000) (defining “sound recording”). 43. See U.S. CONST. art. I, § 8, cl. 8; Feist, 499 U.S. at 346. 44. H.R. REP. NO. 94-1476 at 51 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5664. 45. Feist, 499 U.S. at 345. 46. Id. 47. Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir. 1988) (citations omitted). 48. See Feist, 499 U.S. at 346–47. And this is a good thing, if it is true that “there is nothing new under the sun.” Ecclesiastes 1:9. 49. Feist, 499 U.S. at 348.
2006] ALL MIXED UP 441 compositions, especially in popular music.” 50 Such common themes do not meet the minimum threshold for originality, in the same way that a very simple sentence in English would not. Notes, like words, must be put together in an original way that requires a modicum of creativity. The originality requirement is particularly important in sampling cases. In Newton v. Diamond, 51 the district court found that the three-note sequence sampled by the Beastie Boys from Newton’s flute composition was not original in and of itself as a matter of law. 52 Because the particular sequence was not original, the musical composition thereof was not entitled to copyright protection, and the Beastie Boys could sample it with impunity. 53 Similarly, the defendants in Bridgeport Music, Inc. v. Dimension Films 54 argued that the three-note sample at issue was a common sequence and therefore not entitled to copyright protection. 55 However, unlike in Newton, the alleged infringement in Bridgeport was of the sound recording (not the musical composition), leading the district court to conclude that while the notes themselves may have been unoriginal, the artist’s performance, as captured in the sound recording, was original. 56 The opposing decisions of the two cases in regard to the originality issue highlight the fact that, depending on the subject matter of the copyright, there may be different characteristics to evaluate in order to determine if a work, or piece thereof, is sufficiently original to merit copyright protection. 57 However, although originality may 50. Gaste, 863 F.2d at 1068. 51. 204 F. Supp. 2d 1244 (C.D. Cal. 2002), aff’d, 388 F.3d 1189 (9th Cir. 2004), cert. denied, 125 S.Ct. 2905 (2005). 52. Id. at 1253. The court held that the musical composition was not original; although Newton’s performance may have been original, the issue in this case was infringement of the composition and not infringement of the sound recording, and therefore Newton’s unique performance style was irrelevant. See infra Part III.B. 53. The court of appeals affirmed only on the ground that the use was de minimis. Newton, 388 F.3d at 1190. The originality inquiry does inform the de minimis inquiry, however, in that typically a sample that qualified as de minimis would likewise be unoriginal, and therefore not entitled to copyright protection in the first instance. Nevertheless, it does not follow that a given sequence found to be unoriginal will necessarily be de minimis. See infra Part IV.B. 54. 383 F.3d 390 (6th Cir. 2004), aff’d on reh’g, 410 F.3d 792 (6th Cir. 2005). 55. Bridgeport Music, Inc. v. Dimension Films, 230 F. Supp. 2d 830, 839 (M.D. Tenn. 2002) (noting the way the arpeggiated chord is used and memorialized in the “Get Off” sound recording), rev’d, 383 F.3d 390 (6th Cir. 2004), aff’d on reh’g, 410 F.3d 792 (6th Cir. 2005). 56. Id. The court of appeals originally did not address the originality issue, except to say that it “would agree with the district court’s analysis . . . if the composition copyright had been at issue.” Bridgeport, 383 F.3d at 396 (emphasis added). The court of appeals concluded that a different analysis was required for sound recording copyrights, and “that the requirement of originality is met by the fixation of sounds in the master recording.” Id. Of course, both fixation and originality are constitutionally required, and while a sound recording is by definition fixed, it is not by definition original. See supra Part I.B–C. Additionally, it seems clear that the district court adequately distinguished the fact that the copyright in question was of a sound recording. The court remedied the error in its subsequent order granting a panel rehearing, by amending the opinion to read simply “[w]e agree with the district court’s analysis on the question of originality.” Bridgeport Music, Inc. v. Dimension Films, No. 02-6521, 2004 U.S. App. LEXIS 26877, at *2 (6th Cir. Dec. 20, 2004). 57. For the specific differences between a musical composition copyright and a sound recording copyright, see infra Part III.A–B.
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