CLOSING A LOOPHOLE IN MUSICIANS' RIGHTS:
WHY DIGITAL REMASTERS OF ANALOG SOUND
RECORDINGS ARE NOT DERIVATIVE WORKS
PROTECTED BY THE COPYRIGHT ACT
Jon Peritz*
INTRODUCTION ..............................................
I. THE BACKDROP OF THE DEBATE ......................
A. The Value and Protection of Master Recordings.......
B. Digital Remasters..................................
C. TerminationRights ................................
D. The Issue of Works Made for Hire ..................
II. WHEN IS A DERIVATIVE WORK PROTECTED UNDER
C OPYRIGHT? ...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Tests of Substantialand Distinguishable Variation ....
B. Protection of a Derivative Work Must Not Affect the
Scope of Protection in the Underlying Work ..........
C. Variationfor Functional Considerations, Translations
to a New Medium, Artistic Skill and Hard Work do
not Constitute Substantial or Non- Trivial Variation ..
1. Variations from the Underlying Work Made for
Functional Considerations ....................
2. Works Created by Translating an Underlying
Work Into a New Medium ...................
3. Artistic Skill and Hard Work Do Not, In and
of Themselves, Constitute Sufficient Originality
to Warrant Protection ........................
III.
386
388
390
391
392
393
400
401
406
409
409
410
410
APPLICATION OF DERIVATIVE WORKS STANDARDS TO
412
Not
Vary
Do
Recordings
Sound
Remastered
A. Digitally
Substantially or Distinguishablyfrom the Underlying
Work ............................................. 4 12
DIGITALLY REMASTERED SOUND RECORDINGS .........
Jon Peritz is a candidate for Juris Doctor at the Benjamin N. Cardozo School of Law
(May, 2013). Special thanks to Professors Justin Hughes and Brett Frischmann for their invaluable input on this project and for teaching me about copyright law. Thanks also to my law school
colleagues whose encouragement was essential to getting this Note published. Thanks to the
editorial board and staffers of the Cardozo Public Law, Policy, and Ethics Journal for their
diligence and assistance. Finally, and most importantly, thanks to my incredible family and
friends for their unflagging support and love, without which I would not be who I am today.
386
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B. Changes Made to the Original in the Remastering
Process Are Made for FunctionalConsiderations ...... 413
C. ProtectingDigitalRemasters as Derivative Works Will
Result in Overlapping Legal Claims and Limit the
Scope of Protection in the Underlying Work .......... 415
D. ProtectingDigitalRemasters as Derivative Works will.
Subvert the Purpose of the Termination Provisions of
the Copyright Act ................................. 417
IV. THE PROBLEM OF ACCESS TO THE ORIGINAL MASTER. 418
CONCLUSION ..................................................... 419
INTRODUCTION
Before he hit it big, Jim Peterik of the band Survivor signed a recording contract that granted the copyrights in his sound recordings to
his record label.1 In fact, the majority of contracts between recording
artists and record labels transfer ownership of the copyright in the sound
recording to the record label, effectively limiting recording artists' rights
to those under the contract.' Peterik, however, has a way out of this
nightmare; he can get his copyrights back. Under the Copyright Act of
1976 ("the Act"), grants of copyrights are terminable by the grantor
after a specified amount of time, depending on when the work was created.- This means that he can reacquire the copyrights in his master
recordings from the record label.
This part of the Copyright Act has not been tested in the context
of sound recordings and there may be a few hurdles that the artist must
clear on the road to reacquiring her copyrights. The purpose of this
Note is to explore one of those hurdles - how the practice of digitally
remastering sound recordings will affect artists' termination rights. Artists' right to terminate grants of copyrights in their original master recordings depends on whether or not remasters are derivative works
1 Wendy N. Davis, Reliving the Golden Oldies: Rockers Reclaim Tunes After Revised Cop-
yright Laws, ABA LAW JouRNAL MAGAZINE (May 1, 2012, 3:20 AM), http://www.abajournal.
com/magazine/article/reliving-the-golden-oldies-rockers-reclaim-tunes-after revised-copyrightja/.
2 See, e.g., Randy S. Frisch & Matthew J. Fortnow, Termination of Copyrights in Sound
Recordings: Is There a Leak in the Record Company Vaults?, 17 COLUM. J.L. & ARTS 211, 212
(1992-1993).
3 17 U.S.C. § 203 (2012) (agreements with copyright grants made on or after January 1,
1978); 17 U.S.C. § 304(c) (2012) (agreements with grants of copyrights in their first or renewal
term on January 1, 1978).
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CLOSING A LOOPHOLE IN MUSICIANS' RIGHTS
387
protected under the Copyright Act. 4 This issue is of particular importance because the copyrights in the first post-1978 sound recordings
became eligible for termination starting January 1, 2013. Therefore,
courts will face this issue in the very near future.5
If the courts decide that digital remasters are derivative works of
the original analog sound recordings, record labels will be within their
rights to continue to exploit them after recording artists have terminated
the copyright grant of the original sound recordings.6 This means that,
while they no longer hold the copyright in the original master, labels
will have the right to reproduce and distribute copies of the digital
remaster.
The ability to continue to exploit the remasters will have a serious
deleterious effect on the artists who have reacquired their rights in the
original sound recordings for two reasons. First, the record labels will
have no incentive to negotiate a new grant of the copyright in the original master because they already have a digital version of the master that
they may exploit at will. Second, it will be extremely difficult, if not
completely impossible, for artists to exploit the sound recordings themselves because creating a remaster of their own may infringe the labels'
copyrights in their remasters. Furthermore, artists will be unable to assign their newly secured copyrights to other labels because those labels
will also be afraid of infringing the copyright in the original label's
remaster. This will harm artists further because they lack the marketing
and promotional power of a label. An ancillary, but incredibly important problem artists also face is that once they recover rights to the original master, they must still overcome the problem of forcing labels to
give them the physical master tape itself.
4 17 U.S.C. § 106(2) (2012) ("the owner of copyright under this title has the exclusive
rights to do and to authorize. . . (2) to prepare derivative works based upon the copyrighted
work").
5 17 U.S.C. § 203 (The term of grants under this provision is 35 years, therefore 2013,
being exactly 35 years from 1978, is the first year sound recording copyrights granted on January
1, 1978 will be eligible for termination.).
6 17 U.S.C. § 203(b)(1) (2012). The Copyright Act defines a derivative works as:
a work based upon one or more preexisting works, such as a translation, musical
arrangement, dramatization, fictionalization, motion picture version, sound recording,
art reproduction, abridgment, condensation, or any other form in which a work may
be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original
work of authorship, is a "derivative work".
17 U.S.C. § 101 (2012). Whether and how a work qualifies as a derivative work within this
definition is discussed at length infra Part II.
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In order to fully explore the main query of this Note, it is necessary
to address the law regarding derivative works. Therefore, this Note explicates what a derivative work is and the standards courts use to determine whether a work is a derivative under copyright protection. The
Note also discusses the form and nature of both master recordings and
digitally remastered recordings and why they are so important. As a
backdrop, the Note also explains in detail the right artists have to terminate grants of copyrights in their master sound recordings to the record
labels and, further, the Note discusses the effect the "works made for
hire" provision in the Copyright Act has on artists' right to terminate.
This Note then applies the legal standards for derivative works to the
specific facts surrounding digital remasters in order to determine
whether or not digital remasters are derivative works under the Copyright Act and explore the public policy implications of protecting
remasters.
This Note shows that digital remasters of original analog sound
recordings are not derivative works under the protection of the Copyright Act. They fail to meet the standards set down by the courts for
derivative works and protecting digital remasters would subvert Congress's intent in enacting the termination provisions of the Copyright
Act.
I.
THE BACKDROP OF THE DEBATE
Scholars have recently noted that record labels have already begun
to create purported derivative works in order to secure the ability to
exploit master sound recordings after termination of the original masters. 7 One example in scholarly literature is the creation of the "CDPlus Graphics" format. 8 This technology allows record labels to couple
the music embodied in the original master sound recordings with video
images. 9 A particular benefit of this format is that, while the music and
graphics may only be enjoyed together with a special player, the music
alone will play through a regular CD player.1 0 This means that listeners
can experience the music in the same way in which they are accustomed
and record labels can continue to exploit the master recording despite
losing the copyright in the original master. While creating CD-Plus
Frisch & Fortnow, supra note 2, at 225.
8 Id.
7
9 Id.
10 Id.
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CLOSING A LOOPHOLE IN MUSICIANS'PRIGHTS
389
Graphics is not exactly the same as creating digital remasters on the
original recordings, it shows that record labels are exploring the avenue
of using derivative works to retain a monetary interest in copyrighted
masters even after they lose those copyrights to the artists.
More directly related to the issues explored in the Note is that record labels have already begun to file new copyright registrations for
remastered recordings.'" For instance, Sony BMG Music Entertainment
filed a copyright registration for a remastered version of Ben Folds Five's
album Whatever and Ever Amen. 12 The registration describes the new
release as a compilation of sound recordings and one new sound recording.' 3 In reality, the remastered album, released in 2005, contains all of
the same songs as the original album release 1 4 with seven additional
tracks added. 5 This demonstrates that record labels are already attempting to secure copyrights in remastered recordings in order to exploit them post-termination, even, as in this instance, when the
copyright in the original remaster will not be eligible for termination for
some time.
1
Eliot Van Buskirk, Copyright Time Bomb Set to Disrupt Music, Publishing Industries,
(Nov. 13, 2009, 3:17 PM), http://www.wired.com/epicenter/2009/l 1/copyright-time-bomb-set-to-disrupt-music-publishing-industries/.
WIRED MAGAZINE
12
Id.
13
Copyright Registration Number SR0000372033, available at http://cocatalog.loc.gov/cgi-
bin/Pwebrecon.cgi?vl =1 &ti= 1,1 &SAB1 =sony%20remastered&BOOL1 =all%20of/o20these&
FLD 1=Keyword%20Anywhere%20%28GKEY%29%20%28GKEYO29&GRP1 =OR%20with
%20next%20set&SAB2=&BOOL2=as%20a%20phrase&FLD2=Keyword%20Anywhere%20
%28GKEY%29%20%28GKEY%29&CNT=25&PID=j-LOVjXmDtCnIGv9T9sKYrVjq&
SEQ=20120219185806&SID= 1.
14 Thom Owens, Whatever and Even Amen, ALLMUSIC.COM, http://allmusic.com/album/
whatever-and-ever-amen-r256553 (last visited Aug. 7, 2012).
15 Johnny Loftus, Whatever and Ever Amen (Bonus Tracks), SHoPFoRMusIc.COM http://
shopformusic.microsoft.com/Entity/Albumaspx?albumid=412231 4 3&aid=R%20%20%2073
3070&buymusic= &culture=en-gb (last visited Feb. 4, 2013). The original album release contained the following tracks: "One Angry Dwarf and 200 Solemn Faces," "Fair," "Brick," "Song
for the Dumped," "Selfless, Cold and Composed," "Kate," "Smoke," "Cigarette," "Steven's Last
Night in Town," "Battle of Who Could Care Less," "Missing the War" and "Evaporated."
Owens, supra note 14. The 2005 release had all of those tracks and added the following: "Video
Killed the Radio Star," "For All the Pretty People," "Mitchell Lane," "Theme from Dr. Pyser,"
"Air," "She Don't Use Jelly" and another recording of "Song for the Dumped." Loftus, supra.
390
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[
The Value and Protection of Master Recordings
A master recording is the final version of an artist's particular recorded work, or "the original recording made in the studio." I6 Essentially, if there are copies of a musical album in any form-compact disc,
digital download, vinyl disc, cassette tape, 8-track, to name the most
historically popular-those copies came from the master. Master sound
recordings are explicitly protected under the Copyright Act in section
102(7). 17 This section was added to the Act with the passage of the
Sound Recording Amendment in order to protect copyright owners
from music piracy.1 8
The nature of master recordings when coupled with protection
under the Act illuminates the value of masters. Since all copies to be
sold come from the masters and those masters are protected under the
Act, only the owner of the copyright in the master may make and sell
copies.' 9 With the copyright in masters in the labels' hands, recording
artists are unable to exploit them beyond the terms of their recording
agreements. 20 This is precisely why termination rights are so important
and valuable to artists. Once the labels' copyrights are terminated, the
artists can use the master recordings under the same protection previously enjoyed by labels for the last thirty-five or forty years-they may
make and sell copies of their works, 21 re-transfer the copyright to a label,
and seek judicial relief for infringement of their rights.2 2
16 DONALD S. PASSMAN, ALL
You
NEED TO KNOW ABOUT THE
Music
BUSINESS
67 (7th
ed. 2009). According to Donald Passman the word "master" can be used to refer to either
recordings of individual songs or recordings of entire albums. Id. For the purposes of this Note,
a master refers to an entire album.
17 17 U.S.C. § 102(7) (2012).
18 Act of Oct. 15, 1971, Pub. L. No. 92-140, § 3, 85 Stat. 391. Prior to this amendment,
anyone was free to reproduce and distribute copies of artists' albums without permission and for
free.
PASSMAN,
supra note 16, at 320.
19 17 U.S.C. § 106 (2012) ("Subject to sections 107 through 122, the owner of copyright
under this title has the exclusive rights to do and to authorize any of the following: (1) to
reproduce the copyrighted work in copies or phonorecords . . . (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by
rental, lease, or lending ..
"). Of course, the master recording may be licensed to other parties
for reproduction and distribution as well.
20 The majority of recording agreements provide for royalties based on copies sold. PAssMAN,
21
supra note 16, at 68, 87.
17 U.S.C. § 106(1), (3). Artists would enjoy the rest of the rights provided in
§
106 as
well.
22
See, e.g., Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005)
(where unauthorized use of sound recording was held to be infringing).
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CLOSING A LOOPHOLE INMUSICIANS' RIGHTS
B.
391
Digital Remasters
Creating a digital remaster is the process of making a new master
recording in a digital format from an old master in an analog format.2 3
Digital remasters are made from the original master recording because
consumer copies are of lesser quality. 24 There are two main purposes for
creating these new digitized masters. First and foremost, digital remasters are made in order to exploit older analog recordings on digital media such as compact discs and internet downloads. Second is to preserve
older recordings in a more permanent, less volatile, smaller, and therefore more manageable form.2 5
In order to create a digital version of the analog master tape, a
sound engineer plays the analog master on the appropriate device. 6
The signal that the device outputs can be directly processed by an analog-to-digital converter and digitized, but first it is typically sent along a
chain of analog audio-processing devices.27 Typically, these machines
allow the engineer to alter the sound in various ways. Engineers can
equalize the audio, which entails raising or lowering the bass and treble
frequencies on the original recording in order to account for various
deficiencies in microphones, other recording equipment, and the recording environment. 2 ' The audio can also be compressed and limited at
this stage. 29 This means the engineer can alter the dynamic range (or
variations in volume) of the signal in order to bring the loud and quiet
parts of the music to a tolerable level at any overall volume.3 0 This
23
24
Remaster, WIKiAUDIO.ORG, http://en.wikiaudio.org/Remaster (last visited Feb. 2, 2012).
See BRENT HURTIG, MULTI-TRACK RECORDING FOR MUSICIANS 92 (1988). This con-
cept is known as "generation loss," where every time a track is recorded, or a copy is made of a
recording, the audio quality of that recording is lessened. Id. See also JOHN WATKINSON, THE
ART OF DIGITAL AUDIO 8 (3d ed. 2001) (distinguishing analog from digital recordings with
regard to generation loss).
25 Steve Morse, The CD Revolution has Masters, or Remasters, CHI. TRIB., Oct. 8, 1987, at
D 16. Where analog masters are stored on large vinyl discs or even larger rolls of magnetic tape,
digital masters are most often stored on CDs, DVDs or computer hard-drives.
26 Depending on the age of the master tape, this could be a vinyl record player or analog
tape player.
27 See Morse, supra note 25.
28 Equalizer Clarification: Tutorial,
WIKIAUDIO.ORG,
http://en.wikiaudio.org/Equalizer:.
Clarificationtutorial (last visited Feb 2, 2012); Lincoln Spector, Magix Tool Offers to Remaster
Tunes, P.C. WORLD, Apr. 7, 2004, available at http://www.pcworld.com/article/1 15578/article.
html.
29 Dynamic Range Compression, WIKIAUDIO.ORG,
http://en.wikiaudio.org/Dynamicrange..compression#Compressorusage (last visited Feb 18, 2012).
30 Id.
CARDOZO PUB. LAW, POLICY & ETHICS
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[[Vol. 11:385
makes the whole range of volumes in a song listenable in any environment.3 1 The signal is sometimes also passed through a device designed
to reduce hissing, popping, and other unwanted noise often inherent in
32
analog recordings.
After the signal has been passed along this chain, it reaches an analog-to-digital converter. This device transforms the analog signal into a
digital signal by taking snapshots of the waveform, called samples, in
digital form. 3 Once this digitization process is complete, the resulting
computer file is a digital representation of the original analog master
recording. The engineer may then perform additional processes on the
digital master using computer software. At the end of this process, the
recording engineer has created a digital remaster, enabling sale of the
music contained therein on digital media and helping to ensure that
music lasts for generations to come.
C.
Termination Rights
The overriding purpose of sections 203 and 30 4 (c) of the Copyright Act of 1976 is to protect authors 34 from transfers of their copyrights that do not prove maximally profitable. 5 Section 203 of the Act
covers termination rights for works created on or after January 1,
1978.36 This provision dictates that termination of a copyright grant
may be effected at any time within a five-year period starting at the end
of thirty-five years from the date of the execution of the grant.3 7 Alternatively, for grants that cover the right of publication of the work, the
termination window opens at either thirty-five years after publication of
the work or forty years after the date of the execution of the grant,
whichever comes first? 8 The either/or nature of this provision shows
Congress's intent to protect authors in situations where many years
elapse between the grant of the right of publication and the actual publication of the work.3 9 While the author must terminate the grant within
the five-year period following thirty-five years after the grant of the cop31
Id.
32
33
34
35
36
Spector, supra note 28.
Morse, supra note 25.
The term "authors" refers to all creators of copyrighted works.
H.R. Rep. No. 94-1476, at 124 (1976), reprinted in 1976 U.S.C.C.A.N. 5740.
17 U.S.C. § 203(a).
37 17 U.S.C. § 203(a)(3).
38 Id.
39 H.R. Rep. No. 94-1476, at 126, reprinted in 1976 U.S.C.C.A.N. 5740.
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CLOSING A LOOPHOLE IN MUSICIANS' RIGHTS
393
yright or forty years after the grant of the right of publication, notice
must be served on the grantee not less than two nor more than ten years
before the effective date of termination.40
Section 30 4 (c) of the Act covers termination of grants made for
works created before January 1, 1978.41 Under this provision, the termination may be effected anytime within a five-year window starting
fifty-six years from the date copyright was secured or starting January 1,
1978, whichever is later.42 This section also provides that if the grantor
missed the chance to terminate the copyright grant at the end of the
fifty-six year period, he or she gets a second try at the end of seventy-five
43
years after the copyright was initially secured.
These provisions were viewed as necessary by Congress given the
norm that authors are considered to have much less bargaining power
than those in the position to purchase copyrights of their works.44 It is
easy to see the difference between the starving writer or struggling musician and the powerful publisher or record label. The uncertainty of the
value of a work at the time of its creation makes record labels understandably unwilling to pay recording artists top dollar for their masters. 45 The right to terminate the copyright grant cannot be waived; it is
inalienable.46 Essentially, the right to terminate copyright grants gives
recording artists a second bite at the apple. They are thus protected in
situations where a recording is highly successful but given away cheaply
under the terms of a recording contract.47 The provisions also protect
recording artists' families as they are permitted to terminate the copyright grants if the artist has died.48
D.
The Issue of Works Made for Hire
A central issue in the area of copyright termination is whether or
not sound recordings are "works made for hire" under the meaning of
the Copyright Act. This issue has yet to be resolved in the courts and
40
41
42
43
44
17 U.S.C. % 203(a)(3), (a)(4)(A).
17 U.S.C. § 304(c) (2012).
17 U.S.C. § 30 4 (c)(3).
17 U.S.C. § 304(d)(2).
H.R. Rep. No. 94-1476, at 126, reprinted in 1976 U.S.C.C.A.N. 5740.
45 Id.
46 Id.
47 PASSMAN, supra note 16, at 305 (7th ed. 2009).
48 17 U.S.C.
§
203(a)(1) (2012); H.R. Rep. No. 94-1476, at 125 (1976), reprinted in 1976
U.S.C.C.A.N. 5740-41.
CARDOZO PUB. LAW, POLICY & ETHICS j
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[[Vol. 11:385
this Note does not attempt to resolve it now. However, it is important
to recognize its importance and some explanation is necessary. Works
made for hire are defined as:
(1) a work prepared by an employee within the scope of his or her
employment; or (2) a work specially ordered or commissioned for use
as a contribution to a collective work, as a part of a motion picture or
other audiovisual work, as a translation, as a supplementary work, as a
compilation, as an instructional text, as a test, as answer material for a
test, or as an atlas, if the parties expressly agree in a written instrument
signed by them that the work shall be considered a work made for
hire.
49
This provision of the Copyright Act is vital because works made for hire
are not eligible for the termination provisions that govern other copyrights.5 0 Therefore, if master recordings are considered to be works for
hire, recording artists will never gain ownership of the copyrights subsisting in those recordings and will never have the opportunity to exploit
them for monetary gain beyond the terms of their recording contract.
Under the Copyright Act, record labels would be considered the authors
of the master recordings instead of the musicians themselves.5 1
In determining whether a copyright is a work made for hire, courts
must first determine whether the work is created by an employee within
the scope of his or her employment, thereby satisfying 17 U.S.C.
§101(1).52 This is a bright line rule outlined by the courts.5 3 Courts
have historically espoused four general views of the proper way to determine whether or not an employer-employee relationship exists between
the parties.5 4 However, the United States Supreme Court has settled the
matter and dictates in Community for Creative Non-Violence v. Reid 5 5
49 17 U.S.C.
§ 101 (2012).
201(b) (2012) ("In the case of a work made for hire, the employer or other
person for whom the work was prepared is considered the author for purposes of this title, and,
unless the parties have expressly agreed otherwise in a written instrument signed by them, owns
50 17 U.S.C. §
all of the rights comprised in the copyright.").
51 Id.
52 Easter Seal Soc'y for Crippled Children and Adults of La., Inc. v. Playboy Enters., et al.,
815 F.2d 323 (5th. Cit. 1987).
53
Id.; see also Cmry. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989); Meltzer v.
Zo~ler, 520 F. Supp. 847 (D. N.J. 1981).
54
55
Cmty. for Creative Non-Violence, 490 U.S. at 738-39.
Id. at 730
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CLOSING A LOOPHOLE IN MUSICIANS" RIGHTS
395
("CCNV") that courts should apply the common law of agency when
addressing this issue. 56
The Court in CCNV lays out a series of factors courts should consider in making this determination.5 7 These factors include: (1) the skill
required to create the work; (2) the source of the instrumentalities and
tools used; (3) the location of the work; (4) the duration of the relationship between the parties; (5) the extent of the hired party's discretion
over when and how long to work; (6) the method of payment; (7) the
hired party's role in hiring and paying assistants; (8) whether the work is
part of the regular business of the hiring party; (9) whether the hiring
party is in business; (10) the provision of employee benefits; and (11)
the tax treatment of the hired party.5 8 The Court also makes clear that
59
no single factor in this list is determinative.
The facts of CCNV provide a useful analogy to the creation of
sound recordings. In CCNV, a non-profit organization orally commissioned a sculptor to create an artwork to be displayed at a Christmas
pageant.60 An agent of the non-profit took an active role in the creative
process. 6 The non-profit planned to take the sculpture on tour following the initial exhibition, but the sculptor refused to allow the tour and
the non-profit sued to secure the copyright in the sculpture, arguing
that it was a work made for hire.6 2 The Court held that the sculpture
was not a work for hire because the sculptor was not an employee under
common law agency doctrine.63 The Court was persuaded because the
sculptor was a skilled worker, used his own tools, worked in his own
studio, and was retained for a relatively short time. Furthermore, the
non-profit had no right to assign him additional work, the sculptor was
free to chose his own work days and hours, he was paid in a lump sum
(a customary method for independent contractors, as opposed to employees), he had complete discretion in hiring assistants, the non-profit
was not in the sculpture business, and he was not on the payroll of the
organization nor did he receive benefits.64
56
Id. at 743.
57 Id. at 752-53.
58 Id.
59 Id.
60
Id. at 733.
61 Id.
62
63
64
Id. at 734-37.
Id. at 751-52.
Id. at 752-53.
396
CARD OZO PUB. LAW, POLICY & ETHICS J
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[
Circumstances surrounding master sound recordings are closely
analogous. Recording artists are skilled musicians and recording sessions
typically do not take place in studios owned by labels nor on equipment
owned by labels. 65 Apart from deadlines imposed by labels, similar to
CCNV, artists are usually free to choose their own working days and
hours as long as they deliver the album on time in accordance with their
recording agreement.6 6 Labels typically only have the right to assign
limited numbers of albums, 67 often with options for more to be exercised later and therefore fall somewhere in between a one-shot-deal and
an unfettered right to assign more projects.6 8 In addition, artists, especially well-established ones, typically have the right to choose their own
accompanists 69 and are often paid a recoupable advance along with royalties as opposed to being on the labels' payroll as would a traditional
employee. 7' Further, record companies normally do not provide employee benefits to musicians nor do they deduct payroll or social security
taxes. 7 1 In light of the above, courts will likely be reluctant to hold that
recording artists are employees under section 101(1).
Even stronger support for this proposition is found in the Second
Circuit's holding in Hilton International Co. v. National Labor Relations Board. 72 There, the court found that members of a musical band
hired for a long-term engagement at a hotel were not employees under
the Copyright Act. 73 In a situation analogous to the recording of masters, the bandleader chose accompanists, instruments, and the style of
the music. 74 Furthermore, the hotel paid the band in a lump sum, simi75
lar to the common practice of paying recordings artists an advance.
Even the fact that Hilton withheld payroll tax from the band members'
65 See PASSMAN, supra note i6, at 90-91; see also Frisch & Fortnow, supra note 2, at 220.
66
Frisch & Fortnow, supra note 2, at 220.
67
Id. at 219.
68 PASSMAN,
69
supra note 16, at 102-03.
Frisch & Fortnow, supra note 2, at 219-20.
70 PASSMAN,
supra note 16, at 79.
71
Frisch & Fortnow, supra note 2, at 219.
72
Hilton Int'l Co. v. N.L.R.B., 690 F.2d 318, 321 (2d. Cir. 1982).
73
Id.
74 Id. at 321-22.
75 Id. at 321. The advance payment is often used to pay for the cost of recording the master
and the artists are typically entitled to keep whatever remains after the recording is finished.
Sometimes, the label will pay the artist a "fund" that functions in a similar capacity.
supra note i6, at 79, 91.
PASSMAN,
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CLOSING A LOOPHOLE IN MUSICIANS" RIGHTS
397
paychecks was not enough to sway the court in favor of finding em76
ployee status.
If a court finds that a recording artist is not an employee under
section 101(1) of the Copyright Act, it may nevertheless find that the
work was made for hire pursuant to section 101(2) .7 7 This provision
deems works to be made "for hire" even if the author was not an employee working within the scope of employment if the work satisfies two
requirements. 78 First, the specially commissioned work must fall into
one of nine explicit categories.7 9 Second, that the work made for hire
must be set out in a written agreement and signed by both parties. 8°
The majority of recording agreements stipulate that masters are works
for hire,8 ' so the first prong alone requires explication. The nine categories are exclusive and exhaustive. In fact, all works by non-employees
("independent contractors") "are not works for hire unless the work
comes within the nine narrow statutory categories." 82 The nine categories are as follows: (1) a collective work; (2) a part of a motion picture or
other audiovisual work; (3) a translation; (4) a supplementary work; (5)
a compilation; (6) an instructional text; (7) a test; (8) answer material
for a test; or (9) an atlas.8 3
First, support for the proposition that master sound recordings do
not fit into the categories of section 101 (2) is found in Ballas v. Tedesco,
which held that sound recordings are not works made for hire under
section 101(2) because they simply do not fall into any of the nine
categories set forth therein.84 Nonetheless, of the categories enumerated
above, only the compilation, collective work, or audiovisual work are
76 Hilton at 322-23.
77
17 U.S.C. § 101 (2012).
78 Id.
79 Id.
80 17 U.S.C. § 101(2) (2012).
81 Frisch & Fortnow, supra note 2, at 217.
82 Easter Seal Soc'y for Crippled Children & Adults of La., Inc. v. Playboy Enterprs., 815
F.2d 323, 329 (5th Cir. 1987) (emphasis in original).
83 17 U.S.C. § 101(2) (2012).
84 Ballas v. Tedesco, 41 F. Supp. 2d 531, 540 (D. N.J. 1999).
In this case, the sound recordings, and the relationship between the parties, do not fall
under either of the two statutory definitions of a work for hire. The plaintiff did not
employ Defendants at the time the sound recordings were created. The plaintiff does
not contend that Defendants were his employees when the sound recordings were
created. Furthermore, the sound recordings are not a work for hire under the second
part of the statute because they do not fit within any of the nine enumerated categories, and because there was no signed written agreement between the parties.
398
CARDOZO PUB. LAW, POLICY & ETHICSJ
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potential categories into which a master recording might fall.8 5 Of
these, two are likely to be eliminated immediately. 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. ' 86 Master sound recordings are made up of sounds
created by individual musicians through their respective instruments
and voices. Before being played, these sounds did not exist. Therefore,
masters are not likely to be considered compilations under the Act.
"Audiovisual work" is the second category that can be eliminated
based on the statute alone. Audiovisual works are defined as:
works that consist of a series of related images which are intrinsically
intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying
sounds, if any, regardless of the nature of the material objects, such as
87
films or tapes, in which the works are embodied.
Master recordings, while capable of being synchronized with images, are
not intrinsically intended to be used as such. 88 Therefore, master recordings will likely not be construed to fit into this category.
The "collective work" category is defined as "a work, such as a
periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves,
are assembled into a collective whole. '89 This could be construed as,
and record labels will likely argue, that master recordings are collective
works because multiple songs are recorded on one master. 90 However,
the majority of recording contracts call for the delivery of whole albums
Id.; see also Emily Burrows, Termination of Sound Recording Copyrights & the Potential Unconscionability of Work for Hire Clauses, 30 REv. LITIG. 101, 123 (2010).
85 Frisch & Fortnow, supra note 2, at 221.
86 17 U.S.C. § 101.
87
Id.
88 Sound recordings specifically made for movie soundtracks may lead to a different conclusion. They are more clearly a contribution to an audiovisual work and therefore may fall into
this category. See Muller v. Walt Disney Prods., 871 F. Supp. 678 (S.D.N.Y. 1994) (decided
under the 1909 Copyright Act, showing how music for a motion picture may be part of an
audiovisual work).
89 Id.
90 PASSMAN, supra note 16, at 302.
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CLOSING A LOOPHOLE IN MUSICIANS' RIGHTS
399
of recorded music, singular entities in their entirety, ready for manufacture and sale. 9 1
Furthermore, while a collective work may consist of multiple works
by the same author, there must be sufficient originality in the selection
and arrangement of those works to count as a collective work under the
Copyright Act. 92 The authorship in selection and arrangement must be
substantial and not merely trivial and must be distinguishable from the
work done to create each individual part of the collection. 9 3 Therefore,
if a label has many songs to choose from when selecting the album track
list as well as album art, liner notes or lyrics, it may be considered a
collective work. In contrast, where the label has a small number of
songs and includes them all, it may not be considered a collective
work. 94 This analysis of originality in selection and arrangement also
applies to the compilation category explained above. 95
Finally, while this Note considers sound recordings made after
1978, which are governed by the Copyright Act of 1976,96 it is instruc-
tive to consider work for hire doctrine under the previous Copyright Act
of 190997 as well. One opinion in particular evidences that, while
sound recordings may be considered works for hire under the 1909 Act,
the result would be different under the 1976 Act. 98 In that case, the
estate of Bob Marley sued Universal Music for a declaratory judgment
that the renewal copyrights to various Marley masters belonged to the
estate. 99 TheSouthern District Court held that "[t]he Sound Record91 See id. at 109-10.
92 Frisch & Fortnow, supra note 2, at 222.
By definition, a collective work, as a type of compilation, is characterized by the existence of original authorship in selecting, arranging and editing a number of component works (e.g., recordings) in chronological, topical, or other type of order. Such
authorship must be substantial, not de minimis. Also, these efforts are distinguishable
from the work involved in creating each individual work, such as selecting which
musicians, technicians and studios to use on each recording. After all, there are elements of selectivity, editing and sequencing involved in any original work, such as a
novel or a film, and those are not necessarily collective works.
Id.
93 Id.
94 Id. at 223.
95 See supra note 69 and accompanying text.
96 Martha Graham Sch. & Dance Found., Inc. v. Martha Graham Ctr. of Contemporary
Dance, Inc., 380 F.3d 624, 632 (2d Cit. 2004),
97 17 U.S.C. § 1 et seq. (repealed 1978).
98 Fifty-Six Hope Road Music Ltd. v. UMG Recordings, Inc., 2010 WL 3564258, 11
(S.D.N.Y. Sept. 10, 2010).
99 Id. at 1.
CARDOZO PUB. LAW, POLICY & ETHICS J
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[
[Vol.
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ings were works made for hire under the 1909 Act."1
However, the
Court provided a footnote that reads: "Plaintiffs' copyright claim concerns only the renewal term copyrights in the Sound Recordings created
before January 1, 1978, pursuant to the 1972, 1974 and 1975 Agreements. Thus, Plaintiffs' claim does not concern sound recordings cre-."'0' This suggests that the result may be
ated in 1978 or later .
different under the modern Act.
Furthermore, courts interpreting work for hire doctrine under the
1909 Act applied an "instance and expense" test in determining whether
a work was for hire.1 °2 Under this test, the party at whose instance and
03
expense the work was created was considered the author of the work. 1
This test was used regardless of the employee or independent contractor
status of the claimant. 10 4 Work for hire analysis under the modern Act
differs depending on the status of the claimant and the "instance and
expense" test has been supplanted by the law of agency in the employee
context, 10 5 and by the enumerated categories in the independent contractor context. These tests may produce different outcomes under the
1976 Act. This issue, once again, has not yet been settled by the courts
and some scholars posit that courts will have to rule on a case-by-case
basis. 106
II.
WHEN IS A DERIVATIVE WoRK PROTECTED
UNDER COPYRIGHT?
In order to answer the target question of whether or not a digital
remaster of a sound recording is protectable as a derivative work, it is
first necessary to discover what a derivative work is. The Copyright Act
of 1976 defines a derivative work as:
a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion
picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions,
100 Id. at 8.
101 Id. at n.12.
102
Id.
103
Id. at 7.
104
Id.
105
Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).
See Frisch & Fortnow, supra note 2, at 224.
106
CLOSING A LOOPHOLE IN MUSICIANS' RIGHTS
2013]
401
annotations, elaborations, or other modifications which, as a whole,
107
represent an original work of authorship ....
The courts have interpreted the statutory language, and developed tests,
for determining if a work is indeed copyrightable as a derivative.10 8 The
abundance of cases regarding the standard for whether or not a work is a
derivative work highlight a disagreement among the courts, even within
the same circuit, that is difficult to reconcile. 10 9
A.
Tests of Substantial and Distinguishable Variation
The Second Circuit opined in L. Batlin & Son v. Snyder that, in
order to receive protection under the Act for a derivative of a prior work,
the new work must "contain some substantial, not merely trivial originality."'110 This requirement stems from the core requirement of "originality" that all works must satisfy to enjoy copyright protection.1 11
Based on this premise, the Batlin court denied copyright protection to a
replica of an Uncle Sam coin bank." 2 The copyright claimant in Batlin
pointed to changes he made that distinguished his work from the original. 1 1 3 These included shortening the sculpture from eleven to nine
inches, narrowing the base, changing the shape of the carpet bag, and
including the umbrella and statue in a single mold as opposed to creating them separately.' 14 These changes were ultimately not enough for
the Court to find substantial variation from the original. 11 5
Other courts and decisions have taken a different view regarding
level of variation necessary for protection. They have esthreshold
the
§ 101 (2012).
Compare L. Batlin & Son v. Snyder, 536 F.2d 486 (2d Cir. 1976) (en banc), cert. denied,
429 U.S. 857 (1976) (using the test of substantial variation) with Alfred Bell & Co. v. Catalda
Fine Arts, Inc., 191 F.2d 99, 102 (2d Cit. 1951) (using, instead, the less stringent distinguishable variation test). While Batlin was decided under the 1909 Copyright Act, its tenets have
survived the transition to the 1976 Act. See Durham Indus. Inc. v. Tomy Corp., 630 F.2d 905,
910 n.7 (2d Cit. 1980).
109 Montgomery v. Noga, 168 F.3d 1282, 1290 n.12 (11th Cit. 1991) (Noting that even
107 17 U.S.C.
108
within the 11 th Circuit, cases differ on whether to apply minimal originality test like distinguishable variation or to apply the more stringent test of substantial variation. Ultimately, the
court here decided to apply the minimal test of distinguishable variation.).
110 L. Batlin, 536 F.2d at 490.
"I Id.
113
Id. at 492.
Id. at 488.
114
Id.
115
Id. at 492.
112
402
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poused the somewhat lesser requirement of distinguishable, as opposed
to substantial, variation.116 In fact, this test is seen as the general standard.1 7 Drawing upon this test, courts have denied protection of derivative works in numerous instances. For example, copyright was denied
where the copyright claimant made slight changes from the original in
the dimensions of a beach, trees and water depicted on a towel.1 "'
In Alfred Bell & Co. v. Catalda Fine Arts, Inc., artists attempted to
reproduce famous paintings in the public domain in mezzotint engravings.1 19 The engravers created the mezzotints by scoring a copper plate
and then outlining the painting by tracing a superimposed image.12 °
The engravers then scraped the rest of the image of the original painting
onto the surface varying the depth of their scrapes to achieve light and
shading.' 2 1 From these copper plates, prints, called proofs, were made
and the artists made alterations based on the proofs before
finalization. 2' 2
There, the district court, affirmed by the Second Circuit, found
that the engravings varied sufficiently from the original works and therefore were protectable as derivatives. 2 3 The court held that, while the
original painting was the conception of the original painter, the engravers' conception of the original in the new medium contained distinguishable, and thus protectable, originality despite the fact that the
engravers' contributions were minimal.' 2 4 The court's decision appears
to rely on differences between two engravers) mezzotints of the same
original painting in very specific elements of the works. 2 5 For instance,
the court states that "[t]here are marked differences in the large flower at
the edge of the bodice, the bun of hair at the nape of the neck, and in
the facial expressions, between the two mezzotints."' 126 In Alfred Bell,
Cf. Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 102 (2d Cir. 1951); Sherry
Mfg. Co. v. Towel King of Fl., Inc., 753 F.2d 1565 (11th Cir. 1985).
116
117
1-3 MELVILLE B.
NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT
§
3.03(A) n.22
(2011).
118 Sherry Mfg. Co., 753 F.2d at 1566.
119 Alfred Bell & Co., 191 F.2d 99, 106 (2d Cir. 1951); Alfred Bell & Co. v. Catalda Arts,
Inc., 74 F. Supp. 973 (S.D.N.Y. 1947).
120 Alfred Bell & Co., 74 F. Supp. at 975.
121
Id.
122
Id.
Id. at 976; Alfred Bell & Co.,191 F.2d at 104.
Id.
Id.
Id.
123
124
125
126
CLOSING A LOOPHOLE IN MUSICIANS' RIGHTS
2013]
403
the court seems willing to provide protection for very small degrees of
variation.
The Seventh Circuit, in Gracen v. Bradford Exchange, expressed a
preference for the substantial variation test.1 27 In Gracen, the plaintiff
was the winner of the defendant's contest in which the plaintiff submitted a painting of Dorothy from the film "The Wizard of Oz" to be used
for a series of plates.' 28 The parties could not agree on the terms gov129
erning the use of the plaintiffs painting and so they parted ways.
The defendant then hired another artist to create the paintings and gave
him the plaintiffs painting as a guide. 130 The plaintiff sued claiming
that her work was a protected derivative and had been infringed on by
3
the defendants.1 1
Judge Posner wrote that the function of the concept of originality,
32
especially with derivative works, is to prevent overlapping legal claims. 1
He then offered a hypothetical situation in which a painter paints a
reproduction of the Mona Lisa, which is in the public domain, and
copyrights her work as a derivative.133 This reproduction varies slightly
from the original painting. 134 A second painter then makes another,
independent, reproduction of the Mona Lisa. 135 Painter number one
then sues painter number two for infringement. 3 6 While painter number two will assert the defense that she was copying from the original
Mona Lisa and not painter number one's rendition, the fact of the matter is that the two derivatives will look very similar as they only slightly
vary from the underlying work.' 37 Therefore, assuming painter two had
access 138 to painter one's work, a fact-finder will have great difficulty in
deciding who copied what. 1 39 This hypothetical illustrates how a very
127
Gracen v. Bradford Exch., 698 F.2d 300, 304-05 (7th Cir. 1983).
128
Id. at 301.
129
Id.
130
Id.
131
Id. at 302.
Id. at 304.
132
133 Id.
134 Id.
135
136
137
138
Id.
Id.
Id.
Access to the alleged infringee's work is one factor courts consider when determining if
there has been copying of the claimant's work. It is the first in a two part inquiry used to
determine if there has been an infringement of copyright. Arnstein v. Porter, 154 F.2d 464, 468
(2d Cir. 1946), cert. denied, 330 U.S. 851 (1947).
139 Gracen, 698 F.2d at 304.
404
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liberal interpretation of originality of derivative works actually serves to
inhibit their creation rather than promote it. 4 ' It gives the creator of
the first derivative work the power to foreclose others from creating their
own derivative of the same underlying work. 4 '
In order to deal with this undesirable eventuality, Posner posited
that the substantial similarity test is superior to the "more liberal" distinguishable similarity test."' In fact, Posner suggested that the cases decided before Batlin that utilized the distinguishable test had been
superseded.' 4 3 Based on the substantial similarity test, the Gracen court
denied protection to the plaintiff's painting.'4 4
Another application of the substantial variation test is in Sherry
Manufacturing Co., v. Towel King of Florida, Inc.' 45 In this Eleventh
Circuit case, the plaintiff redesigned an old image depicting a beach
scene that they printed on beach towels.1 46 The court there clearly utilized the substantial variation standard in stating that "[i]t is well settled
that in order to qualify for a separate copyright, the derivative work
must contain some substantial, and not merely trivial, originality."' 147 In
denying copyright protection to the towel design, the court held that,
"the contributions made by Sherry's artist are simply too trivial
and too
insubstantial to justify copyright protection." 148 The court noted that
the details of the new design were virtually unnoticeable upon first comparison.' 4 9 Upon close inspection, the only recognizable changes were
in the size and spacing of "non-detailed" elements of the design.' 50 The
court also wrote that allowing copyright protection for the new towel
design would be contrary to the purposes of copyright law especially
considering the fact that these changes were made in order to achieve
140 Id. at 305. After all, the purpose of copyright protection is to encourage creative people
to create, and benefit society as whole in the process. Sony Corp. of Am. v. Universal City
Studios, Inc., 464 U.S. 417, 429 (1984). As it says in the Constitution, Congress is empowered
"[t]o promote the Progress of Science and useful Arts, by securing for limited Times to
Authors
and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. CONST.
art. I,
§ 8, cl. 8.
141 Id.
142 Id.
143 Id.
144 Id.
145 Sherry Mfg. Co. v. Towel King of Fl., Inc., 753 F.2d 1565 (11th Cir. 1985).
146
Id. at 1566.
147 Id. at 1568 (emphasis added).
148 Id.
149
Id.
150
Id. 1569.
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CLOSING A LOOPHOLE IN MUSICIANS' RIGHTS
405
copyright protection rather than to achieve an aesthetic or creative
15
goal. '
Illustrating the confusion surrounding this doctrine, the Eleventh
Circuit applied the substantial variation standard in holding that drawings of Paddington Bear were sufficiently original to claim derivative
work protection. 152 However, the court seems to have applied this test
less stringently than in other cases. The only differences outlined by the
court were changes to the size of Paddington Bear's hat, the elimination
15 3
of individual fingers and toes, and the general smoothing of lines.
The two tests that provide standards for deciding whether a work is
a derivative under copyright law seem to divide courts and, even in applying one or the other, courts appear to conflate the standards. As
noted above, the Eleventh Circuit held, on one hand, that changing the
sizes and spacing of objects on a towel did not create enough variation
from the original to satisfy the substantial variation test, 1 54 while, on the
other hand, held that altering the size of a bear's hat and merging his
fingers and toes together varied enough from the original to meet the
stricter of the two standards. 55 This confusion will undoubtedly carry
over into cases that arise regarding whether or not digital remasters are
derivative works of their analog counterparts. However, in analyzing
facts under both tests, along with the other restrictions courts have
placed on derivative works doctrine outlined below, 5 6 it becomes clear
that regardless of the standard applied, digital remasters are not derivative works.
151
Id.
152
Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27, 34-35 (11th Cir. 1982),
superseded by statute, Pub. L. No. 100-667, 102 Stat. 3935, 3946, as recognized in U.S.
Healthcare v. Blue Cross of Greater Phila., 898 F.2d 914, 921 (3d. Cir. 1990).
In this case ...
variations . . . although too minor to entitle the ...
work to claim a
different aesthetic appeal, are still original and substantial enough to deserve independent copyright protection. The numerous changes made . . . - the changed proportions of the hat, the elimination of individualized fingers and toes, the overall
smoothing of lines - combine to give the... drawing a different, cleaner "look" than
the ... sketch on which it is based. Such a contribution satisfies the minimal requirements of originality for registration under the Copyright Act.
Eden Toys, Inc., 697 F.2d at 34-35. See also Durham Indus. v. Tomy Corp., 630 F.2d 905,
910 (2d Cit. 1980).
153 Eden Toys, Inc., 697 F.2d at 35.
154
See supra note 148 and accompanying text.
155 See Eden Toys, Inc., supra notes 152-53 and accompanying text.
156
See infra Parts II(B), II(C).
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B. Protection of a Derivative Work Must Not Affect the Scope of
Protection in the Underlying Work
The Second Circuit in Durham Industries v. Tomy Corp. and the
Ninth Circuit in Entertainment Research Group Inc. v. Genesis Creative Group Inc. echoed Judge Posner's fear that protecting derivative
works that do not vary substantially from the original may prevent
others from creating authorized works and prevent owners of the underlying copyright to authorize more derivatives. 157 These two circuits' interpretations also mirror the statutory command that a derivative work
may not affect the scope of protection in the underlying copyright.158
159
Durham arose from a dispute between two toy manufacturers.
The plaintiff sought a declaratory judgment that its toys did not violate
any rights of the defendant.1 6 ° Claims were asserted for numerous toys
but only one group of the defendant's products concerns the topic of
this Note. These were a series of plastic wind-up figures "instantly recognizable as the Disney characters Mickey Mouse, Donald Duck and
Pluto Dog." 6 ' The plaintiff produced nearly identical copies of these
figures and even conceded that it used the defendant's toys as blueprints
for its own.' 62 Whether or not the plaintiff violated the defendant's
rights depended on whether or not the defendant's toys were protectable
as derivative works. To determine whether or not the defendant's toys
were protectable as derivative works, this court applied the following
test:
First, to support a copyright the original aspects of a derivative work
must be more than trivial. Second, the scope of protection afforded a
derivative work must reflect the degree to which it relies on preexisting
material and must not in any way affect the scope of copyright protec16 3
tion in the preexisting material.
157 Durham Indus., Inc., v. Tomy Corp., 630 F.2d 905 (2d Cir. 1980); Entm't Research
Grp., Inc., v. Genesis Creative Grp. Inc., 122 F.3d 1211 (9th Cir, 1997).
158 17 U.S.C. § 103(b) (2012).
159
Durham, 630 F.2d at 907.
160
Id.
161
Id. at 908.
162
Id.
163
Id. at 909 (emphasis added).
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CLOSING A LOOPHOLE IN MUSICIANS' RIGHTS
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Thus, for works not in the public domain (as opposed to the case in
Batlin), 64 the copyrightabilty of a derivative work turns on whether or
not that work affects the copyright protection in the underlying work.
The Durham court held that the defendant's Disney toys lacked substantial variation and, therefore, affected the scope of protection of the
underlying copyright. 165 As this is a facial violation of the Copyright
Act, 166 the court denied copyright protection of the defendant's toys as
67
derivative works. 1
Importantly, the court also noted that allowing copyright protection in the defendant's derivatives would effectively require the plaintiff,
who was authorized by Disney to create toys, to make significant
changes to its versions of the toys to avoid infringing the defendant's
copyrights. 1 68 One might argue that if the plaintiff simply copied from
Disney and not the defendant, the infringement claims would fail; however, since a showing of access to the defendant's derivatives along with
substantial similarity between the two may support an infringement
169
claim, at the very least, the plaintiff would be open to harassment.
This also, in effect, would foreclose Disney from licensing other companies to create derivative works of its characters. 17' This deleterious effect
on owners of the original copyright and potential future derivative authors highlights the need for finding sufficient originality in derivative
works before protecting them. 171
The court in Entertainment Research Group evaluated the protectability of the plaintiffs three-dimensional inflatable costumes
modeled after popular cartoon characters. 172 The defendant was a
wholesaler of the plaintiff's costumes. 173 The case arose when the defendant allegedly provided another business partner with the plaintiffs cos164
L. Batlin & Son v. Snyder, 536 F.2d 486 (2d Cir. 1976) (en banc), cert. denied, 429 U.S.
857 (1976).
165 Durham, 630 F.2d at 910.
166 17 U.S.C. § 103(b) (2012).
167 Durham, 630 F.2d at 910.
168
Id. at 911.
169
Id.; see also L. Batlin & Son, 536 F.2d at 492 ("To extend copyrightabilty to minuscule
variations would simply put a weapon for harassment in the hands of mischievous copiers.").
170 Durham, 630 F.2d at 911.
171
172
Id.
Entm't Research Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211 at 1214 (9th
Cir. 1997) (Examples of such characters are the Pillsbury Doughboy, Geoffrey the Giraffe and
Cap'n Crunch.).
173 Id. at 1215.
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tume designs in order to manufacture them more cheaply and earn
4
greater profits.'1
A major concern for this court, as it was for the Durham court,
was protecting the bundle of rights held by the owner of the underlying
copyright. 1 75 It was this matter that drove the court to draw upon the
Durham test to determine protectability in derivative works. 176 Again
echoing the Durham court, Judge Rea wrote that derivative works without sufficient originality necessarily affect the copyright protection of
the underlying works and thereby violate section 103(b) of the Copyright Act. 1 77 Relating back to the second prong of the Durham test,
Judge Rea said that derivative works with insufficient originality affect
the underlying works because the owner of the underlying work is essentially prevented from authorizing other parties to make derivatives of her
work for fear of infringing on the prior derivative. 178 Protecting such
derivatives essentially confers a de facto monopoly on the author of the
first derivative work and gives that author "considerable power to interfere with the creation of subsequent derivative works from the same
underlying work." 179 The court there concluded that, because the
plaintiffs costumes were immediately identifiable as embodiments of
the underlying works, no reasonable person could conclude that any
variations were more than trivial and therefore awarded summary judg0
ment to the defendant.18
Following the court's reasoning in Entertainment Research Group,
if they had allowed protection of the plaintiffs costumes, the owners of
the copyrights in the underlying characters (Pillsbury, Toys 'R Us, etc.)
would likely be foreclosed from, or at least risk litigation by, hiring a
different costume manufacturer to create more costumes. In Durham,
Disney would have met a similar barrier with toy manufacturers. This
174
Id.
175
Id. at 1219.
176
Id. at 1220. The court noted that its reliance on the Durham test was supported by the
fact that multiple courts had accepted it as their test as well. Id.
177 Id. ("The copyright in a compilation or derivative work extends only to the material
contributed by the author of such work, as distinguished from the preexisting material employed
in the work, and does not imply any exclusive right in the preexisting material. The copyright in
such work is independent of, and does not affect or enlarge the scope, duration, ownership, or
subsistence of, any copyright protection in the preexisting material.") (quoting 17 U.S.C.
§ 103(b)) (emphasis added).
178 Id.
179 Id. (quoting Gracen v. Bradford Exch., 698 F.2d 300, 305 (7th Cir. 1983)).
180 Id. at 1223.
2013]
CLOSING A LOOPHOLE INMUSICIANS'RIGHTS
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concern also applies to the protectability of digital remasters of sound
recordings as derivative works as will be discussed infra.185
C.
Variationfor Functional Considerations, Translations to a New
Medium, Artistic Skill and Hard Work do not Constitute
Substantialor Non- Trivial Variation
1.
Variations from the Underlying Work Made for
Functional Considerations
Courts have held that variations in a derivative work that are made
for purely functional reasons are not considered when evaluating the
degree of originality in the derivative.182 It is, in fact, paradoxical for a
court to include functional aspects of the work in its analysis as those
aspects of the work are not copyrightable themselves. 18 3 Imagine a
sculptural work that differs from an underlying work only due to one
functional, non-trivial aspect the derivative author created. If a court
included functional aspects of the work in its originality analysis, it
would be protecting a work as a derivative due to the presence of an
184
uncopyrightable element.
Copyright protection extends only to the artistic aspects of a work
and not the mechanical or utilitarian aspects.185 As a result, a work with
substantial variation only in functional aspects will not receive protection as a derivative work.18 6 As the court in Entertainment Research
Group aptly wrote, the changes made to the cartoon characters were
"driven by the functional considerations necessitated by the fact that a
human body must fit inside the costumes '187 and not by artistic or creative considerations. So, "in evaluating the originality of ERG's cosSee infra Part III.
Cf. Entm't Research Grp., 122 F.3d at 1220.
183 17 U.S.C. § 101 (2012).
181
182
Thus, because any utilitarian, functional or mechanical aspects of a derivative work
will not be copyrightable in the long run, see 17 U.S.C. § 101, any differences in
appearance between a derivative work and the preexisting work which are not conceptually separable from any utilitarian, functional or mechanical purposes should not be
considered by a court in determining whether sufficient artistic differences exist to
constitute "originality."
Entm't Research Grp., 122 F.3d at 1222.
184 Id.
185 Durham Indus., Inc., v. Tomy Corp., 630 F.2d 905 at 913.
186 NIMMER,
187
supra note 117, at § 3.03(c)(2).
Entm't Research Grp., 1211 F.3d at 1223, quoted in
3.03(c)(2).
NIMMER,
supra note 117, at
410
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tumes, any differences that exist because of functional or mechanical
considerations should not be considered."18' 8
2.
Works Created by Translating an Underlying Work Into a
New Medium
While it may require a certain degree of skill, merely transcribing
an underlying work into a different medium does not result in a substantial variation that supports a finding of sufficient originality.' 89 In
Gallery House Inc., v. Yi, for example, a company that made molds for
a brass sculpture manufacturer claimed copyright protection over the
molds as derivative works.' 90 The court held that, not only did the
mold-maker not have permission to create derivative works, "[i]t simply
converted a two-dimensional design to a three-dimensional object,
which, without sufficient original artistic contribution, does not constitute a copyrightable effort."' '
Durham also provides an apt example. Where the claimant of protection over the plastic toys merely reproduced the underlying characters
in another material, the court held that there was not enough originality
to justify protection.' 92 This doctrine extends further than purely
change in the material of the work. Even in Entertainment Research
Group, where the costume maker did not make precise replicas of the
cartoon characters, the court still found instructive, along with the
purely functional changes, the notion that a translation to new medium
does not confer the threshold level of originality to warrant
protection. 193
3.
Artistic Skill and Hard Work Do Not, In and of Themselves,
Constitute Sufficient Originality to Warrant Protection
Undoubtedly, the remastering process requires some, or even a
high level of, skill as well as hard work. 194 However, these two factors,
188 Id.
189 Gallery House Inc., v. Yi, 582 F. Supp. 1294, 1297 (N.D. Ill. 1984).
190 Gallery House, 582 F. Supp. at 1297.
191 Id.
192 Durham, 630 F.2d at 913.
193 Entm't Research Grp., 1211 F.3d at 1222.
194 See supra notes 23-33 and accompanying text.
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CLOSING A LOOPHOLE IN MUSICIANS' RIGHTS
411
without more, are not enough to afford a work copyright protection;
1 95
originality remains the essential element.
Some courts have propounded a narrow exception to this rule
where extraordinary artistic skill and time spent on a work may supplant
the requirement of substantial variation in a derivative work. 196 A prime
example of this appears in Alva Studios, Inc. v. Winninger. 197 In Alva,
the plaintiff art studio created a reproduction of Rodin's famous Hand
of God sculpture in miniature form. 198 The court noted that Rodin's
work was one of the most complex and intricate sculptures ever created
and the artist who created the miniature had to reproduce a multitude
of lines, planes and other intricacies with painstaking exactitude, or else
the reproduction would look wrong. 199 In holding that the miniature
work was a protected derivative of the original, the court said that the
extreme artistic skill necessary to recreate such a complex piece with
sufficient precision constitutes originality in and of itself.2 °°
Furthermore, the court took into account the differences in the
bases of the two sculptures. 20 ' Where the base of the original Rodin has
an open back, the miniature piece sat on top of a closed-backed base. 22
This deviation combined with the extreme artistic skill and time required to recreate the Rodin was enough to convince the Alva court to
protect the miniature as a derivative.2 °3 The court, even in highlighting
the extremely skilled nature of the work, seemed to require the minor
difference in the base to hold the work protected, illustrating the narrow
nature of the holding.
195 Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 364 (1991) ("Feist's use of the
listings cannot constitute infringement. This decision should not be construed as demeaning
Rural's efforts in compiling its directory, but rather as making clear that copyright rewards
originality, not effort.").
196 See L. Batlin & Son v. Snyder, 536 F.2d 486, 491 (2d Cir. 1976) (en banc), cert. denied,
429 U.S. 857 (1976).
197 Alva Studios, Inc. v. Winninger, 177 F. Supp 265 (S.D.N.Y. 1959).
198 Id. at 266.
199 Id.
200 Id. at 267.
201 Id.
202 Id.
203 Id.
412
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[
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APPLICATION OF DERIVATIVE WORKS STANDARDS TO
DIGITALLY REMASTERED SOUND RECORDINGS
A.
Digitally Remastered Sound Recordings Do Not Vary Substantially
or Distinguishablyfrom the Underlying Work
As noted above, in order to be protected as a derivative work, the
remaster must vary substantially from the underlying master recording
and, according to the Durham court, must not affect the degree of protection in the preexisting material.20 4 Digitally remastering an analog
master sound recording does not produce variation that constitutes originality sufficient for copyright protection as a derivative work. In fact,
the entire purpose of digitally remastering a sound recording is to exploit that record in the digital market place, not to create a new, original
material. It would not behoove a record label or artist to create a digital
remaster that varies substantially from the original. Therefore, when
scrutinized under the substantial variation test laid out in Durham, digital remasters do not pass muster. Furthermore, a digital remaster takes
an analog master recording and transforms it into a digital version of the
original. Mere translation to a new medium does not display the requisite level of creativity to support protection as a derivative work.20 5
Record labels will likely argue that digitally remastering an analog
tape requires a high degree of skill and experience, not to mention a
significant amount of work, and that therein lies justification for extending copyright protection. Indeed, the labels would be correct in
part. Digitizing analog masters is done by specially educated and experienced audio engineers. However, the degree of skill and quantum of
effort necessary to create a work is not relevant in determining whether
the work is copyrightable.20 6 Originality is still the deciding factor.20 7
During the digital remastering process, there are undoubtedly
changes made to the original. 20 8 This is purportedly done in order to
enhance the sound quality of the master in order to improve the listening experience. 2 0 9 Labels may argue that the equalization process confers sufficient variation, and therefore originality, to bring remasters
204
See supra notes 157-181 and accompanying text.
205
Gallery House Inc., v. Yi, 582 F. Supp. 1294 (N.D. I11.1984).
206
Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 353 (1991); Computer Assocs.
Int'l v. Altai, Inc., 982 F.2d 693, 711 (2d Cir. 1992).
207 Feist, 499 U.S. at 354-55.
208 See supra Part I(B).
209 Id.
2013]
CLOSING A LOOPHOLE INMUSICLANS' RIGHTS
413
under the umbrella of copyright protection as derivative works. Once
again, however, this argument falls short of the mark. The law is clear
that courts will not consider qualitative improvements in the derivative
over the original are not properly considered in determining whether a
work is a protectable derivative.2 1
Labels will also likely argue that, under the distinguishable variation test, digital remasters vary enough from the underlying master recordings to be considered derivative works. As the bar for protecting a
work as a derivative is lower in this test, this is a stronger argument than
claiming protection under the substantial variation test. In fact, if having distinguishable variation were the only prerequisite to obtaining protection as a derivative work, the labels may have a small chance of
prevailing, depending on the court's interpretation.
When analogized to the Alfred Bell case, where small and specific
variations in a particular flower, rendition of a hairdo and facial expressions varied distinguishably from the original painting in the eyes of the
court,2 11 digital remasters may vary enough from the original to pass the
distinguishable variation test. On the other hand, when compared to
the Durham case, where plastic wind up toy versions of popular Disney
characters were held not to satisfy the distinguishable variation test,2 12
digital remasters will likely not pass muster. Regardless of how the labels will fair with the distinguishable variation test however, their claim
that digital remasters are protected derivative works should, and likely
will, fall short in light of the further limitations laid down by the courts
and analyzed infra.
B.
Changes Made to the Original in the Remastering Process Are Made
for Functional Considerations
One reason courts will not deem digital remasters to be protected
derivative works is that the purpose of making changes to original masters when creating digital remasters may be fairly categorized as functional. Since the whole reason underlying digital remastering is to
enable exploitation in the digital marketplace, it is necessary to make
changes to the original to facilitate this transition.2 13 An engineer may
have to equalize and compress the sound from the analog master tape in
supra note 117, at § 3.03(A).
Alfred Bell & Co. v. Catalda Fine Arts, Inc., 74 F. Supp. 973, 976 (S.D.N.Y. 1947).
Durham Indus., Inc., v. Tomy Corp., 630 F.2d 905 (2d Cir. 1980).
Spector, supra note 28.
210 NIMMER,
211
212
213
414
CARDOZO PUB. LAW, POLICY & ETHICS J.
[Vol. 11:385
order to fully exploit the digital medium.2 14 This bears close analogy to
Entertainment Research Group where the court denied copyright protection to costume versions of popular cartoon characters.2" 5 As noted,
the changes to the characters were made in order to enable a person to
fit inside-a purely functional variation from the original.21 6
The case of digital remasters is also similar to the cartoon character
costumes in Entertainment Research Group because the costume maker
there set out to create faithful representations of the cartoon characters
just like audio engineers set out to make faithful digital representations
of analog masters. Were either to make substantial changes to the original, the new work would be far less desirable because, in the end, consumers want to look just like Disney characters and the closer they get,
the happier they will be. Similarly, music consumers want their Beatles
CD to sound like the original vinyl record. Therefore, in digital remasters, as in Disney cartoon character costumes, the whole idea is to present the beloved original in a new form. As such, it is difficult to
conceive of variations from the original sufficient to justify protection as
derivative works. Any variations made from the original in creating the
remaster are functional and not protected by copyright.
The remasterer's quest for fidelity highlights another reason why
digital remasters are not derivative works. As the purpose of digital
remasters is to reproduce the original analog tape as perfectly as possible,
the fewer derivations from the original work the better. This environment is closely analogous to that of the photographer who strives to
capture exactly what she sees before her-to create a perfect copy of the
real world on a piece of paper or a digital storage device. Photographers
who aim for this mark merely make slavish copies of the underlying
matter and their photographs are not copyrightable.21 7 As Judge Kaplan
said in Bridgeman Art Library, Ltd., v. Corel Corp.:
214
See supra notes 29-32 and accompanying text.
215
Entm't Research Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211 (9th Cir.
1997).
Id. at 1223.
Bridgeman Art Library, Ltd., v. Corel Corp., 36 F. Supp. 2d 191, 197 (S.D.N.Y. 1999).
Plaintiffs in Bridgeman claimed copyright protection for transparencies of paintings in its collec216
217
tion which were made for teaching and research purposes, "in other words, the whole goal of the
choices made in lens, focus, lighting, angle, etc. had been exclusively to produce extremely accurate representations of the paintings." Justin Hughes, The Photographer's Copyright - Photograph as Art, Photograph as Database, BENJAMIN N. CARDOZO SCHOOL OF LAW, YESHIVA
UNIVERSITY, JACOB BURN',s INSTITUTE FOR ADVANCED LEGAL STUDIES, FACULTY RESEARCH
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CLOSING A LOOPHOLE IN MUSICIANS' RIGHTS
415
plaintiff by its own admission has labored to create "slavish copies" of
public domain works of art. While it may be assumed that this required both skill and effort, there was no spark of originality-indeed,
the point of the exercise was to reproduce the underlying works with
absolute fidelity. Copyright is not available in these circumstances.2 18
The similarity between photographs like those at issue in
Bridgeman and digital remasters is clear. Both attempt to capture something that already exists in the world and to do so with such precision
that the copy is as close to the original as possible. This strongly suggests that digital remasters of analog masters are not derivative works
under copyright protection.
C.
Protecting DigitalRemasters as Derivative Works Will Result in
Overlapping Legal Claims and Limit the Scope of Protection
in the Underlying Work
Judge Posner's concern that derivative works that do not vary substantially from the original will affect the rights of the underlying copyright is implicated with full force in the case of digital remasters.21 9
When artists begin to exercise their termination rights to regain ownership of the copyrights in their original masters, they will regain the right
and ability to create their own digital remasters in order to sell their
music in digital form. 22' As digital remasters do not vary substantially
from the original recording, it will be nearly impossible to tell if the
artist created the remaster independently or if he or she copied from the
label's remaster.
Just as with Judge Posner's Mona Lisa hypothetical, neither court
nor jury will be able to say for certain who copied what. 221 This may
well lead to widespread litigation between labels and artists and as a
result, artists may be foreclosed from creating digital remasters of their
own, and will therefore be unable to sell their works in today's marketplaces. Extending copyright protection to digital remasters would thereNo. 347, 38 (2011) (discussing the Bridgeman case and copyrightability of photographs), available at http:/Ipapers.ssrn.com/sol3/papers.cfm?abstractid=1931220.
218 Id.
219 Gracen v. Bradford Exch., 698 F.2d 300, 304-05 (7th Cir. 1983).
220 This is true because once artists regain the copyright in the original master, all of the
PAPER
rights set forth in 17 U.S.C. § 106 are attached. They therefore will have the exclusive right to
reproduce and distribute their master recordings. 17 U.S.C. § 106(1), (3) (2012).
221 Gracen, 698 F.2d at 304 (7th Cir. 1983).
416
CARDOZO PUB. LAW, POLICY & ETHICS J
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fore put a weapon for harassment in the hands of the labels and have a
chilling effect on artists' ability to exploit their newly acquired rights.22
The result is a serious narrowing of the scope of protection afforded by the Copyright Act. Out of fear of being sued by their labels,
artists will not exploit their rights under copyright. They will essentially
lose the right to reproduce and distribute their copyrighted work.223
Protecting digital remasters as derivative works therefore would violate
the Copyright Act. 224 Furthermore, digital remasters fail to meet the
standards set down in Durham and Entertainment Research Group for
derivative works because as noted above, a derivative work may not affect the scope of protection of the underlying copyrighted work.2 25
Another important consideration in the protection of derivative
works is that only the original parts of the derivative, that is, the aspects
changed from or added to the original, are protected. 226 This then begs
the following question: if a court decides that digital remasters are protected derivative works, what portions of a digital remaster are even protectable? By the terms of the statute, it is surely not the underlying
recording.227 The labels may only claim copyright protection in the
original equalization, compression or other effects and processes utilized
in the remastering process. These are, after all, the only aspects added
to, or changed from the original analog master tape. However, as explained before, those alterations are merely functional-done only to
facilitate the translation into the new digital medium-and such variation does not confer copyright protection as a derivative work.2 2 8 It
seems, therefore, that the only portions added or varied through the
remastering process-the only parts that could potentially be protected
under derivative works doctrine-are unprotectable themselves.
222
L. Batlin & Son v. Snyder, 536 F.2d 486, 492 (2d Cir. 1976) (en banc), cert. denied, 429
U.S. 857 (1976).
223 17 U.S.C. §
224
106(1), (3) (2012).
17 U.S.C. §103(b) (2012) (prohibiting derivative works from affecting the scope of copy-
right protection in the underlying work).
225 Durham Indus., Inc., v. Tomy Corp., 630 F.2d 905 (2d Cir. 1980); Entm't Research
Grp., Inc., v. Genesis Creative Grp. Inc., 122 F.3d 1211 (9th Cit. 1997).
226 17 U.S.C. § 103(b) ("The copyright in a compilation or derivative work extends only to
the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.").
Id.
Entm't Research Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1223 (9th Cir.
1997).
227
228
CLOSING A LOOPHOLE IN MUSICIANS' RIGHTS
2013]
417
This analysis shows that courts will likely decline to offer copyright
protection to digital remasters as derivative works. Doing so would narrow the scope of copyright protection in the underlying analog original
and grant protection to purely functional aspects of the remaster-both
violations of the Copyright Act itself.
D.
ProtectingDigital Remasters as Derivative Works will Subvert the
Purpose of the Termination Provisions of the Copyright Act
If the purpose of the termination provisions22 9 is indeed what Congress says it is, 23 ° granting copyright protection of digital remasters to
record labels flies in the face of Congress's intent. These provisions are
meant to protect artists and their families from unremunerative transfers
of the copyrights in their original master tapes.231 They essentially make
up for the inequality of bargaining power between those in a position to
purchase copyrights and those who create copyrighted works.2 32 This
purpose certainly applies to the music business where the norm consists
of large record companies with vast resources contracting with musicians
who are normally of far fewer means. This environment is exactly what
Congress had in mind when enacting the termination provisions.
In granting protection as derivative works to digital remasters, a
court would effectively foreclose artists from assigning the copyright to a
new record label and from creating their own remasters and therefore
from selling their works in today's music marketplace. 2 33 In so doing,
the court would remove any and all benefits conferred on artists by the
termination provisions of the Copyright Act. They would still be able
to terminate the copyright grants to the labels but they would not be
able to do anything with those copyrights. This eventuality displays
how granting protection to digital remasters would circumvent Congress's intent regarding copyright termination and is yet another reason
why digital remasters should not be protected by copyright as derivative
works.
229 17 U.S.C. §§ 203, 304(c) (2012).
230 H.R Rep. No. 94-1476, 94th Cong., 2d Sess.
124 (1976),
reprinted in 1976
U.S.C.C.A.N. 5740.
231 Id.
232 Id.
233 Durham Indus., Inc., v. Tomy Corp., 630 F.2d 905 (2d Cir. 1980); Entm't Research
Grp., 122 F.3d 1211.
418
CARD OZO PUB. LAW, POLICY & ETHICS J
IV.
[[Vol. 11:385
THE PROBLEM OF AcCESS TO THE ORIGINAL MASTER
When recording artists recapture the copyrights in the original
masters, they still must overcome the fact that the actual master itself is
sitting on the record company's shelf. The ownership of a copyright is
separate and distinct from a property right over the actual physical object embodying that copyright.2 34 Therefore, just because an artist owns
the copyright in her master does not mean that the label will give her
the physical object. She will still be unable to exploit the original
master. The disconnect between copyright and property ownership will
lead to an impasse between the artist and the label where neither party
will be able to exploit the master.2 35 Labels will be unable because they
no longer own the copyright and artists will be unable because they do
not own, or have access to, the physical master tape.
One possible resolution of this predicament is that record labels
may be willing to part with the master with minimal fuss because they
no longer have a copyright interest in the original master after an artist's
termination. This would obviously be the simplest resolution of the
issue, but is also the least likely. Record labels that have just lost the
copyright in a master have a vested interest in getting it back and may
use the possession of the actual master tape as leverage in a negotiation.
As a result, artists may be forced to look to the courts for access to the
2 36
master tapes.
Courts have "broad equitable power to enjoin defendants from denying plaintiffs and their invitees access to [a] Work for the purpose of
exploiting [the] copyright. '2 3 7 In the CCNV case, the parties ultimately
reached a settlement whereby they agreed that CCNV had exclusive
ownership of the sculpture itself and Reid had exclusive ownership of
2 38
the copyright in three-dimensional reproductions of the sculpture.
This settlement ended up causing even more problems for the parties
when Reid wished to make a mold of the original to exploit his copyright, and CCNV refused to allow him access to the original sculp234 17 U.S.C. § 202 (2012); see Cmty. for Creative Non-Violence v. Reid, 846 F.2d 1485,
1495 (D.C. Cit. 1988) aff'd, 490 U.S. 730 (1989).
235 Jane C. Ginsburg, Conflicts of Copyright Ownership Between Authors and Owners of
Original Artworks: An Essay in Comparative and International Private Law, 17 Coi UM.-VLA
J.L. & AR[s 395, 400 (1993).
236 NIMMER, supra note 117, at § 10.09(C)(2).
217 Id. citing Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303, 331 n.15 (S.D.N.Y. 1994)
238 Cmty. for Creative Non-Violence v. Reid, 1991 U.S. Dist. LEXIS 20227, *I(D.D.C.
Oct. 16, 1991)..
20131
CLOSING A LOOPHOLE IN MUSICIANS' RIGHTS
419
ture.2 3 9 Pursuant to its power under the All Writs Act 24° and section
502 of the Copyright Act, 2 "1 the Court held that Reid was "entitled to a
limited possessory right of his own, in the nature of an implied easement of necessity ....*"
Courts should be willing to extend injunctive relief to recording artists and allow them access to the original
master for at least long enough to create their own digital remasters.
This, after all, is really the only way they can exploit their newly ac-
quired rights.
CONCLUSION
The issue of whether or not digital remasters of analog master tapes
are derivative works within the protection of the Copyright Act is absolutely essential because its resolution dictates the rights of musicians
who terminate grants of the copyrights in their master recordings to
record labels. If courts decide that digital remasters are indeed derivative
works, artists will not be able to exploit the copyrights in the original
masters. They will be unable to renegotiate a license of the copyright
back to the label because the label will not need to pay to exploit their
remaster.2 43 Other labels will have no interest because exploiting that
copyright will expose them to a risk of liability for infringement. Artists
will also be foreclosed from creating their own digital remasters in order
to exploit the recordings in today's digital music marketplace because
they too would risk being sued for copyright infringement by their record labels.
The courts dictate that a work is not protected as a derivative unless it varies substantially from the underlying work. 2 4 Furthermore,
variation made for functional considerations,2 4 5 translations to a new
219 Id. at *1-2.
24o 28 U.S.C. § 16 51 (a). "The Supreme Court and all courts established by Act of Congress
may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable
to the usages and principles of law." Id.
241 17 U.S.C. § 502(a) (2012). "Any court having jurisdiction of a civil action arising under
this title may, subject to the provisions of section 1498 of title 28, grant temporary and final
injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a
copyright." Id.
242 Cmty. for Creative Non-Violence, 1991 U.S. Dist. LEXIS 20227, at *3.
243 17 U.S.C. § 203(b)(1) (2012).
244 L. Batlin & Son v. Snyder, 536 F.2d 486, 490 (2d Cit. 1976) (en banc), cert. denied, 429
U.S. 857 (1976).
245 See Entm't Research Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1222 (9th
Cir. 1997).
420
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[
medium, 246 skill, 247 and hard work, 24 " do not constitute substantial variation. Digital remasters are meant to recreate the original sound recording in a digital medium, not to make variations to that original
recording. Any variations made to the underlying recording are pursued
in order to take advantage of the benefits of the digital medium. Also,
even though some may argue that digital recordings have better sound
quality than their underlying analog antecedents, courts may not consider quality in their reasoning. 249 Following this analysis, digital remasters of original analog recordings do not meet the requisite level of
variation to pass muster as a derivative work and are thus not protected
by the Copyright Act.
Further support for this proposition is found in the effect protecting digital remasters would have on termination rights of artists. Allowing record labels to claim copyright in their digital remasters will
foreclose artists from renegotiating another grant of the copyright to a
record label and from creating their own digital remasters of their original works. Therefore, designating digital remasters as derivative works
would negate this effect and subvert the purpose of the termination provisions of the Copyright Act and, by association, Congress.
In light of the above analysis and argument, digital remasters of
analog master tapes are not derivative works and are therefore not protected under the Copyright Act.
246
247
248
249
Gallery House Inc., v. Yi, 582 F. Supp. 1294 (N.D.Ill. 1984).
Feist Publ'ns, Inc. v. Rural Tel. Serv. Co. 499 U.S. 340 at 364 (1991).
Id.
As Justice Oliver Wendell Holmes famously said: "It would be a dangerous undertaking
for persons trained only to the law to constitute themselves final judges of the worth of pictorial
illustrations, outside of the narrowest and most obvious limits. At the one extreme some works
of genius would be sure to miss appreciation." Bleistein v. Donaldson Lithographing Co., 188
U.S. 239, 251 (1903).
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Daria Andryushchenko
Samuel Beyea
Nick Bonham
Jess Cohen-Nowak
Bianca Costa
Toussaint Cummings
Alex Dombroff
Morris Dweck
Brian Fedele
Dinisha Fernando
Lindsey Friedman
David Fries
ISSN 1546-1483
Brandon Greenblatt
David Hamid
Elliot Hamlet
Gregory Huffaker III
Zhenni Lian
Benjamin Muller
Paige Munson
Michael Novasky
Britany Nunez
Matthew Paluch
Nicholas Phillips
Kristen Ramos
Ashwat Rishi
Frank Rosenfleld
Robert Salame
Meryl Schulman
Elizabeth Segal
Poonam Sethi
Justin Vine
Nicole Waknine
Sagan Weiss
Gabrielle Wilson
Maggie Yang
YusufYusuf
ii
Benjamin N. Cardozo School of Law
Yeshiva University
ADMINISTRATION
Richard M. Joel, J.D., President, Yeshiva University.
Matthew Diller, J.D., Dean, Professor of Law.
Edward Stein, J.D., Ph.D., Vice Dean, Professor of Law.
Matthew Levine, M.B.A., Associate Dean for Finance and Administration.
Marcia Levy, J.D., Associate Dean for Career Services, Professor of Professional
Development.
David G. Martinidez, M.A., Associate Dean for Admissions.
Judy Mender, J.D., Associate Dean for Students.
Patricia Weiss, M.A., Associate Dean for Institutional Advancement.
Lynn Wishart, A.M.L.S., J.D., Associate Dean for Library Services, Director of the Law
Library, Professor of Legal Research.
Amy Sugin, M.A., Assistant Dean of Graduate and InternationalPrograms.
Jeanne Estilo Widerka, J.D., Assistant Dean for Admissions.
Emily Ackerman, B.S., Director of Special Events.
John DeNatale, B.A., Director of Communications and Public Affairs.
Heather DePierro, J.D., Director of Student Services.
Jon D. Goldberg, M.A., Director of Student Finance.
Kathleen Horton, B.A., Director of the Office of the Dean.
Leslie S. Newman, J.D., Director of Lawyering Skills and Legal Writing.
Sandra Pettit, B.A., Directorof Faculty Services.
Rebecca Rosenfeld, J.D., Director ofExternships.
Sherry-Ann Smith, J.D., Director of Career Services.
Selene Steelman, J.D., Director of LL.M. Admissions.
Leslie Thrope, J.D., Director of the Centerfor Public Service Law.
Isabel K. Balson, M.A., Registrar.
FACULTY
Michelle Adams, Professor of Law. B.A., 1985, Brown University; J.D., 1989, City
University of New York; LL.M., 1994, Harvard University.
Paris Baldacci, ClinicalProfessor of Law and Supervising Attorney, Bet Tzedek Legal
Services Clinic. B.A., 1965, University of Scranton; Ph.D., 1974, Marquette
University; J.D., 1987, City University of New York.
Richard A. Bierschbach, Associate Professor of Law. B.A., 1994, J.D., University of
Michigan.
Jennifer Blasser, ClinicalAssistant Professor of Law. B.A., 1993, Tufts University; J.D.,
1998, New York University.
J. David Bleich, Herbert and Florence Tenzer Professor ofJewish Law and Ethics. B.A.,
1960, Brooklyn College; M.A., 1968, Columbia University; Ph.D., 1974, New
York University.
Lester Brickman, Professorof Law. B.S., 1961, Carnegie-Mellon University; J.D., 1964,
University of Florida; LL.M., 1965, Yale University.
Michael J. Burstein, Assistant Professor of Law. B.A., 1999, Yale University; J.D., 2004,
New York University.
David Gray Carlson, Professor of Law. B.A., 1974, University of California, Santa
Barbara; J.D., 1977, University of California, Hastings.
Susan P. Crawford, Professor of Law. B.A., 1984, J.D., 1989, Yale University.
Laura E. Cunningham, Professor of Law. B.S., 1977, University of California, Davis;
J.D., 1980, University of California, Hastings; LL.M., 1988, New York University.
Matthew Diller, Dean and Professor of Law. A.B., 1981, J.D., 1985, Harvard University.
Mitchell Engler, Professor of Law. B.A., 1987, J.D., 1990, LL.M., 1991, New York
University.
Brett M. Frischmann, Professor of Law. B.A., 1995, M.Sc., 1997, Columbia University;
J.D., 2000, Georgetown University.
Myriam Gilles, Professor of Law. B.A., 1993, Harvard-Radcliffe Colleges; J.D., 1996,
Yale University.
Elizabeth Goldman, Clinical Associate Professor of Law. B.A., 1987, State University of
New York, Albany; J.D., 1990, Benjamin N. Cardozo School of Law, Yeshiva
University.
Toby Golick, Clinical Professorof Law, Directorof Clinical Legal Education, and Director,
Bet Tzedek Legal Services Clinic. B.A., 1966, Barnard College; J.D., 1969,
Columbia University.
Peter Goodrich, Professor of Law. LL.B., 1975, University of Sheffield; Ph.D., 1984,
University of Edinburgh.
Minasse Haile, Professor Emeritus. B.A., 1950, University of Wisconsin, Madison; LL.B.,
1954; M.A., 1957; Ph.D., 1961, Columbia University.
Malvina Halberstam, Professor of Law. B.A., 1957, Brooklyn College; J.D., 1961,
M.I.A., 1964, Columbia University.
Marci A. Hamilton, Paul R. Verkuil Chair in Public Law. B.A., 1979, Vanderbilt
University; M.A., 1982, M.A., 1984, Pennsylvania State University; J.D., 1988,
University of Pennsylvania.
Eva H. Hanks, Dr. Samuel Belkin Professor of Law and Society. Referendar, 1951, Freie
Universit't, Berlin; LL.B., 1960, University of California, Los Angeles; LL.M.,
1962, J.S.D., 1969, Columbia University.
Michael Eric Herz, Professor of Law, and Director, Floersheimer Centerfor Constitutional
Democracy. B.A., 1979, Swarthmore College; J.D., 1982, University of Chicago.
Justin Hughes, Professor of Law. B.A., 1982, Oberlin College; J.D., 1986, Harvard
University.
Kyron J. Huigens, Professor of Law. A.B., 1981, Washington University; J.D., 1984,
Cornell University.
Arthur J. Jacobson, Max Freund Professor of Litigation andAdvocacy. B.A., 1969, J.D.,
1974, Ph.D., 1978, Harvard University.
Melanie Leslie, Professor of Law. B.A., 1983, University of Oregon; J.D., 1991,
Benjamin N. Cardozo School of Law, Yeshiva University.
Marcia Levy, Associate Dean for Career Services and Professor ofProfessionalDevelopment.
B.S., 1975, State University of New York, Albany; J.D., 1980, Lewis and Clark
College.
Lela Porter Love, Professor of Law and Director, Kukin Programfor Conflict Resolution
and Mediation Clinic. A.B., 1973, Harvard-Radcliffe Colleges; M.Ed., 1975,
Virginia Commonwealth University; J.D., 1979, Georgetown University.
Peter Lushing, Professor ofLaw. A.B., 1962, LL.B., 1965, Columbia University.
Peter Markowitz, Clinical Associate Professor of Law. B.A., 1994, Wesleyan University;
J.D., 2001, New York University.
Leslie S. Newman, Professor of Law and Directorof Lauyering Skills and Legal Writing.
B.A., M.A., 1975, Brown University; J.D., 1978, Boston University.
Jonathan H. Oberman, Clinical Professor of Law. B.A., 1974, M.A., 1976, M. Phil.,
1979, Columbia University; J.D., 1982, Northeastern University.
Eric J. Pan, Associate Professor ofLaw. A.B., 1994, J.D., 1998, Harvard University;
M.Sc., 1995, University of Edinburgh.
Deborah N. Pearlstein, Assistant Professor Law. A.B., 1993, Cornell University; J.D.,
1998, Harvard University.
Monroe E. Price, Joseph and Sadie DancigerProfessor of Law and Director, Howard M.
Squadron Program in Media, Law, and Society. B.A., 1960, LL.B., 1964, Yale
University.
Daniel B. Ravicher, Lecturer in Law. B.S.C.E., 1997, University of South Florida; J.D.,
2000, University of Virginia.
Alexander A. Reinert, Associate Professor of Law. A.B., 1994, Brown University; J.D.,
1999, New York University.
Sheri Rosenberg, ClinicalAssistant Professor of Law, Director,Program in Holocaust and
Human Rights Studies, and Director, Human Rights and Genocide Clinic. B.A.,
1989, New York University; J.D., 1994, Benjamin N. Cardozo School of Law,
Yeshiva University; LL.M., 2003, Columbia University.
Michel Rosenfeld, Justice Sydney L. Robins Professor of InternationalLaw and Human
Rights. B.A., 1969, M.A., 1971, M.Phil., 1978, Ph.D., 1991, Columbia University;
J.D., 1974, Northwestern University.
Jessica A. Roth, Assistant Professor of Law. B.A., 1992, J.D., 1997, Harvard University.
David Rudenstine, Sheldon H. Solow Professor of Law. B.A., 1963, M.A.T., 1965, Yale
University; J.D., 1969, New York University.
Leslie Salzman, ClinicalProfessor of Law. B.A., 1978, Tufts University; J.D., 1981, New
York University.
Barry C. Scheck, Professor of Law and Co-Director, Innocence Project. B.S., 1971, Yale
University; J.D., M.C.P., 1974, University of California, Berkeley.
Jeanne L. Schroeder, Professor of Law. A.B., 1975, Williams College; J.D., 1978,
Stanford University.
William Schwartz, University Professor of Law. A.A., 1952, J.D., 1955, A.M., 1960,
Boston University; L.H.D., 1996, Hebrew College; L.H.D., 1998, Yeshiva
University.
Anthony Sebok, Professor of Law. B.A., 1984, Cornell University; M.Phil., 1986,
University of Oxford; J.D., 1991, Yale University; Ph.D., 1993, Princeton
University.
Paul M. Shupack, ProfessorEmeritus. A.B., 1961, Columbia University; J.D., 1970,
University of Chicago.
Jonathan L. F. Silver, Professor of Law. B.A., 1969, Yale University; J.D., 1973,
University of Pennsylvania.
Carlton M. Smith, ClinicalAssociate Professor and Director, Tax Clinic. B.A., 1978, J.D.,
1981, Harvard University.
Alex Stein, Professor of Law. LL.B., 1983, LL.M., 1987, The Hebrew University of
Jerusalem; Ph.D., 1990, University of London.
Edward Stein, Vice Dean, Professor of Law, and Director, Programfor Family Law, Policy,
and Bioethics. B.A., 1987, Williams College; Ph.D., 1992, Massachusetts Institute
of Technology; J.D., 2000, Yale University.
Stewart E. Sterk, H. Bert and Ruth Mack Professor of Real Estate Law and Acting
Director,Intellectual Property Law Program. A.B., 1973, J.D., 1976, Columbia
University.
Martin J. Stone, Professor of Law. B.A., 1982, Brandeis University; J.D., 1985, Yale
University; B.Phil., 1988, Oxford University; Ph.D., 1996, Harvard University.
Suzanne Last Stone, Professor of Law and Director, Center for Jewish Law and
Contemporary Civilization. B.A., 1974, Princeton University; J.D., 1978, Columbia
University.
Julie Chi-Hye Suk, Professor ofLaw. A.B., 1997, Harvard University; J.D., 2003, Yale
University; M.Sc., D.Phil., 2004, University of Oxford.
Peter Tillers, Professor ofLaw. B.A., 1966, Yale University; J.D., 1969, LL.M., 1972,
Harvard University.
Richard H. Weisberg, Walter Floersheimer Professor of ConstitutionalLaw. B.A., 1965,
Brandeis University; Ph.D., 1970, Cornell University; J.D., 1974, Columbia
University.
Lynn Wishart, Associate Dean for Library Services, Professor of Legal Research, Director,
Dr. Lillian & Dr. Rebecca Chutick Law Library. A.B., 1969, West Virginia
University; A.M.L.S., 1971, University of Michigan; J.D., 1977, Washington
University.
Felix Wu, Associate Professor of Law. A.B., 1996, Harvard College; Ph.D., J.D., 2005,
University of California, Berkeley.
Charles M. Yablon, Professorof Law. B.A., 1972, Columbia University; J.D., 1975, Yale
University.
Ekow N. Yankah, Professorof Law. B.A., 1997, University of Michigan; J.D., 2000,
Columbia University; B.C.L., 2002, Oxford University.
Ellen C. Yaroshefsky, Clinical Professor of Law. B.A., 1969, J.D., 1975, Rutgers
University.
Edward A. Zelinsky, Morris and Annie Trachman Professorof Law. B.A., 1972, M.A.,
J.D., 1975, M. Phil., 1978, Yale University.
VISITING FACULTY
Mauro Bussani, Visiting Professor of Law. J.D., 1983, University of Trieste.
Robert Collins, Visiting Clinical Professor of Law. B.A., 1972, Yale University; J.D.,
1975, University of Pennsylvania.
Larry Cunningham, Visiting Professor of Law. B.A., 1985, University of Delaware; J.D.,
1988, Benjamin N. Cardozo School of Law, Yeshiva University.
Christian Delage, Visiting Professor of Law. M.A., 1980, Ph.D., 1985, Ltcole des Hautes
1tudes en Sciences Sociales.
Erica M. Eisinger, Visiting Professor of Law. B.A., 1965, William Smith College; M.A.,
1966, Middlebury College; Ph.D.,1972, Yale University; J.D., 1982, University of
Wisconsin.
Stanley Fish, Floersheimer Distinguished Visiting Professor of Law. B.A., 1959, University
of Pennsylvania; M.A., 1960, Ph.D., 1962, Yale University.
Eric Freedman, Visiting Professor of Law. B.A., 1965, University of Durham U.K.;
Ph.D., 1970, Cornell University.
Ann Gellis, Visiting Professor of Law. B.A., 1968, Case Western Reserve University; J.D.,
1971, New York University.
Betsy Ginsberg, Visiting Clinical Assistant Professor of Law. B.A., 1994, Wesleyan
University; J.D., 1999, New York University.
Lisa Huestis, Visiting Professor of Law. B.A., 1978, Hamilton College; J.D., 1983,
Brooklyn Law School.
Yair Lorberbaum, Visiting Professor of Law. B.A., 1986, LL.B., 1987; M.A., 1991,
Ph.D., 1997, Hebrew University.
Susanna Mancini, Floersheimer Distinguished Visiting Professor of Law. J.D., 1991,
University of Bologna; LL.M., 1992, University of Florence; Ph.D., 1995,
European University Institute.
Uriel Procaccia, Visiting Professor of Law. LL.B., 1967, LL.M., 1969, Hebrew University;
S.J.D., 1972, University of Pennsylvania.
Hon. Eliezer Rivlin, Visiting Professor of Law. B.A., 1968, Hebrew University; LL.M.,
1982, Tel Aviv University; LL.M., 1985, Temple University.
Wojciech Sadurski, Floersheimer Distinguished Visiting Professor of Law. LL.M., 1972,
Ph.D., 1977; Habilitacja, 1992, University of Warsaw.
Renata Saleci, Visiting Professor of Law. B.A., 1986, M.A., 1988, Ph.D., 1991,
University of Ljubjana.
Kate Shaw, Visiting Assistant Professor of Law. B.A., 2001, Brown University; J.D., 2006,
Northwestern University.
Michael Silverman, Visiting Professor of Law. B.A., 1994, McGill University; J.D., 2000,
Harvard University.
David Udell, Visiting Professorfrom Practice. B.A., 1979, Brandeis University; J.D.,
1982, New York University.
ADJUNCT FACULTY
Laura Abel, Adjunct Professor of Law. A.B., 1989, Harvard University; J.D., 1994, Yale
University.
Harold Abramson, Adjunct Professor of Law. B.B.A., 1971, University of Michigan; J.D.,
1974, Syracuse University; M.P.A., 1982, LL.M., 1983, Harvard University.
Olga Akselrod, Adjunct Professor of Law. B.A., 1996, University of California, Berkeley;
M.A., 1999, Johns Hopkins; J.D., 2002, New York University.
William Araiza, Adjunct Professor of Law. B.A., 1983, Columbia University; M.S., 1985,
Georgetown University; J.D., 1990, Yale University.
William Baker, Adjunct Professor of Law. B.A., 1968, Yale University; J.D., 1972,
Harvard University.
Roger Baneman, Adjunct Professor of Law. B.A., 1972, Yale University; J.D., 1976,
Harvard University.
Hon. Deborah Batts, Adjunct Professorof Law. B.A., 1969, Harvard-Radcliffe Colleges;
J.D., 1972, Harvard University.
Simeon H. Baum, Adjunct Professor of Law. B.A., 1976, M.A., 1979, Colgate
University; J.D., 1982, Fordham University.
Bryce Benjet, Adjunct Professor of Law. B.A., 1995, Brandeis University; J.D., 1998,
University of Texas.
Adam J. Berner, Adjunct Professor of Law. B.A., 1990, M.A., 1994, Yeshiva University,
J.D., 1994, Benjamin N. Cardozo School of Law, Yeshiva University.
Nicole Blumberg, Adjunct Professorof Law. B.A., 1995, University of Vermont; J.D.,
1998, Benjamin N. Cardozo School of Law, Yeshiva University.
Blaine H. Bortnick, Adjunct Professor of Law. B.A., 1986, Duke University; J.D., 1989,
Emory University; LL.M., 1990, New York University.
Kathleen A. Bryan, Adjunct Professor of Law. B.A., 1978, University of Massachusetts;
J.D., 1981, Northeastern University.
Susan Buckley, Adjunct Professor of Law. B.A., 1973, Mount Holyoke College; J.D.,
1977, Fordham University.
Douglas Burgess, Adjunct Professor of Law. B.A., 1999, McGill University; J.D., 2002,
Cornell University; LL.M., 2003, University of British Columbia; Ph.D., 2009,
Brown University.
Patrick J. Burke, Adjunct Professor of Law. B.A., 1980, State University of New York,
Binghamton; J.D., 1987, New York University.
Daniel J. Bursky, Adjunct Professor of Law. B.A., 1990, Yale University; J.D., 1993,
Columbia University.
Edward Cavanagh, Adjunct Professor of Law. A.B., 1971, University of Notre Dame;
J.D., 1974, Cornell University; LL.M., 1986, J.S.D., 1988, Columbia University.
Efraim Chalamish, Adjunct Professor of Law. LL.B., 1999, LL.M., 2000, MBA, 2001,
Bar-Ilan University; LL.M., 2003, S.J.D., 2008, University of Michigan.
Devereux Chatillon, Adjunct Professor of Law. A.B., 1975, Harvard College; J.D., 1979,
New York University.
Elizabeth Clemants, Adjunct Professor of Law. B.A., 1993, Iowa State University;
M.S.W., 1998, Columbia University.
Carolyn E. Coffey, Adjunct Professor of Law. B.A., 1994, Franklin & Marshall College;
J.D., 2004, City University of New York.
Morris E. Cohen, Adjunct Professor of Law. A.B., 1989, Harvard College; J.D., 1994,
Benjamin N. Cardozo of Law, Yeshiva University.
Susan W. Coleman, Adjunct Professor of Law. B.A., 1978, Hampshire College; M.P.A.,
1987, Kennedy School of Government, Harvard University; J.D., 1983, Hofstra
University.
Craig Cooley, Adjunct Professor of Law. B.S., 1996, University of Pittsburgh; M.S.,
2000, University of New Haven; J.D., 2004, Northwestern University.
Thomas A. Crowell, Adjunct Professor of Law. B.A., 1988, New York University; J.D.,
2002, Benjamin N. Cardozo School of Law, Yeshiva University.
Howard Darmstadter, Adjunct Professor of Law. A.B., 1963, University of Pennsylvania;
Ph.D., 1967, Princeton University; J.D., 1977, Harvard Law School.
Alphonso David, Adjunct Professor of Law. B.A., 1992, University of Maryland; J.D.,
2000, Temple University.
Janice A. Dean, Adjunct Professor of Law. B.S., 1999, University of California at
Berkeley; J.D., 2005, Pace University.
Alvin Deutsch, Adjunct Professor of Law. A.B., 1965, Johns Hopkins University; LL.B.,
1968, Yale University.
Ayala Deutsch, Adjunct Professor of Law. B.A., 1986, City University of New York; J.D.,
1989, New York University.
Frank S. DiGiglio, Adjunct Professor of Law. B.S., 1975, Boston College; J.D., 1982, St.
John's University.
Nancy Neveloff Dubler, Adjunct Professor of Law. A.B., 1964, Barnard College; LL.B.,
1967, Harvard University.
Donny Ebenstein, Adjunct Professor of Law. B.A., 1990, University of Michigan; J.D.,
1995, Harvard University.
Janis M. Echenberg, Adjunct Professor of Law. B.A., 1997, University of Pennsylvania;
J.D., 2003, University of California, Los Angeles.
Arthur Eisenberg, Adjunct Professor of Law. B.A., Johns Hopkins University; J.D.,
Cornell University.
Bennett Ellenbogen, Adjunct Professor of Law. B.A., 1986, Michigan State University;
J.D., 1990, University of Michigan.
Andrew Elmore, Adjunct Professor of Law. B.A., 1995, Swarthmore College; J.D., 2002,
University of California, Los Angeles.
Richard Eskew, Adjunct Professor of Law. B.S., 1996, Manhattan College; J.D., 1999,
Fordham University.
Christopher D. Frey, Adjunct Professor of Law. B.A., 1999, Syracuse University; J.D.,
2003, Stanford Law School.
Andrew Friedman, Adjunct Professor of Law. BA, 1993, Columbia University; J.D.,
1998, New York University.
Tracey B. Frisch, Adjunct Professor of Law. B.A., 2001, Tulane University; J.D., 2006,
Benjamin N. Cardozo School of Law, Yeshiva University.
Matthew Furman, Adjunct Professor of Law. B.A., 1991, Brown University; J.D., 1994,
Harvard University.
Gary J. Galperin, Adjunct Professor of Law. B.A., 1977, Columbia University; J.D.,
1980, Benjamin N. Cardozo School of Law, Yeshiva University.
Hon. Nicholas Garaufis, Adjunct Professor of Law. B.A., 1969, J.D., 1974, Columbia
University.
Leslie Gerwin, Adjunct Professor of Law. B.S., 1972, Prescott College; J.D., 1976,
Antioch University; M.P.H., 1998, Tulane University; M.P.A., 2002, Kennedy
School of Government, Harvard University.
Rabbi Anthony Glickman, Adjunct Professor of Law. B.A., 1970, Columbia University;
M.B.A., 1980, New York University.
Amy Gottlieb, Adjunct Professor of Law. B.A., 1985, M.S., 1986, State University of New
York, Albany; JD., 1996, Rutgers University, Newark.
Michael R. Graif, Adjunct Professor of Law. B.S.E., 1988, University of Pennsylvania;
LL.B., 1991, University of Toronto.
Hon. Joseph Greenaway, Adjunct Professorof Law. B.A., 1978, Columbia University;
J.D., 1981, Harvard University.
Hon. Ethan Greenberg, Adjunct Professor of Law. B.A., 1978, Yale University; J.D.,
1981, Columbia University.
Jeffrey J. Haas, Adjunct Professor ofLaw. B.S., 1984, Florida State University; J.D.,
1988, University of Pennsylvania.
Zvi Hahn, Adjunct Professor of Law. B.A., LL.B., 1993, Tel Aviv University; LL.M.,
1996, J.S.D., 2002, New York University.
Eric Hecker, Adjunct Professor of Law. B.A., 1991, University of Pennsylvania; J.D.,
1997, University of Michigan.
Jonathan Henes, Adjunct Professor ofLaw. B.A., 1991, Union College; J.D., 1996,
Benjamin N. Cardozo School of Law, Yeshiva University.
Robert Hettleman, Adjunct Professor of Law. B.A., 1991, Dartmouth College; J.D.,
1996, New York University.
David N. Hoffman, Adjunct Professor of Law. J.D., 1986, State University of New York,
Buffalo.
Gary T. Holtzer, Adjunct Professor of Law. B.S., 1986, Cornell University; J.D., 1990,
Benjamin N. Cardozo School of Law, Yeshiva University.
Moshe Horn, Adjunct Professor of Law. B.A., 1989, George Washington University; J.D.,
1993, Benjamin N. Cardozo School of Law, Yeshiva University.
Omar Jadwat, Adjunct Professor of Law. B.A., 1995, Yale University; J.D., 2001, New
York University.
Edward Josephson, Adjunct Professor of Law. B.A., 1978, Harvard College; J.D., 1981,
New York University.
Barbara Kolsun, Adjunct Professor of Law. B.A., 1971, Sarah Lawrence College; J.D.,
1982, Benjamin N. Cardozo School of Law, Yeshiva University.
David Korzenik, Adjunct Professor of Law. B.A., 1972, Harvard College; M.A., 1976,
Columbia University; J.D., 1979, Benjamin N. Cardozo School of Law, Yeshiva
University.
Jason Kreag, Adjunct Professor of Law. B.A., 1997, DePauw University; M.A., 1999,
Indiana University; J.D., 2003, Harvard University.
Carolyn Kubitschek, Adjunct Professor of Law. B.A., 1970, Oberlin College; J.D., 1973,
University of Chicago.
Marina Lao, Adjunct Professor of Law. B.A., 1974, State University of New York, Stony
Brook; J.D., 1980, Albany Law School; LL.M., 1994, Temple University.
Lillian Laserson, Adjunct Professor of Law. B.S., 1972, Syracuse University; J.D., 1983,
Benjamin N. Cardozo School of Law, Yeshiva University.
Jeffrey I. D. Lewis, Adjunct Professor of Law. B.S.E., 1983, University of Connecticut;
J.D., 1986, Benjamin N. Cardozo School of Law, Yeshiva University.
Arthur S. Linker, Adjunct Professor of Law. A.B., 1968, M.A., 1970, Columbia
University; J.D., 1974, Harvard University.
Burton N. Lipshie, Adjunct Professor of Law. B.S., 1964, LL.B., 1967, Columbia
University.
David Loftis, Adjunct Professor of Law. B.A., 1986, Tufts University; J.D., 1990,
University of Pennsylvania.
Wanda Lucibello, Adjunct Professor of Law. B.A., 1978, St. Lawrence University; J.D.,
1981, State University of New York, Buffalo.
Kenneth McCallion, Adjunct Professor of Law. B.A., 1968, Yale University; J.D., 1972,
Fordham University.
Matthew McFarlane, Adjunct Professor of Law. Sc.B., 1991, Brown University; PhD.,
1997, Stanford University; J.D., 2005, Fordham University.
Robert Meister, Adjunct Professor of Law. A.B., 1959, New York University; LL.B.,
1952, Columbia University.
Melanie Meyers, Adjunct Professorof Law. B.S., 1982, Massachusetts Institute of
Technology; J.D., 1987, Columbia University.
Alba Morales, Adjunct Professor of Law. B.A., 1996, Brown University; J.D., 2001, New
York University.
Matthew Morreale, Adjunct Professor of Law. B.A., B.A.S., 1990, M.S., 1994, University
of Pennsylvania; J.D., 1997, Columbia University.
Nina Morrison, Adjunct Professor ofLaw. B.A., 1992, Yale University; J.D., 1998, New
York University.
Tim Mulligan, Adjunct Professor of Law. B.A., 1990, Boston College; M. P.A., 1996,
Princeton University; J.D., 1996, New York University.
Peter Neufeld, Adjunct Professor of Law. B.A., 1972, University of Wisconsin; J.D.,
1975, New York University.
Stanley Neustadter, Adjunct Professor of Law. A.B., 1964, Tufts University; LL.B., 1967,
Boston University.
Sateesh Nori, Adjunct Professor of Law. B.A., 1997, Johns Hopkins University; J.D.,
2001, New York University.
Clyde Otis Ill, Adjunct Professor of Law. B.S., 1983, Cornell University; J.D., 1986,
Brooklyn Law School.
Christian T. Palmieri, Adjunct Professor of Law. B.A., 1993, University of Rhode Island;
J.D., 2003, Benjamin N. Cardozo School of Law, Yeshiva University.
Hon. Andrew J. Peck, Adjunct Professor of Law. B.A., 1974, Cornell University; J.D.,
1977, Duke University.
Arnold Pedowitz, Adjunct Professor of Law. B.A., 1967, University of Wisconsin; J.D.,
1971, Boston University; LL.M., 1978, New York University.
Curtis Pew, Adjunct Professor of Law. B.A., 1969, Tulane University; M.P.P.A., 1970,
University of Wisconsin; J.D., 1978, George Washington University.
Vanessa Potkin, Adjunct Professor of Law. B.A., 1996, J.D., 2002, Columbia University.
Rebecca Price, Adjunct Professor of Law. B.A., 1995, Sarah Lawrence College; J.D.,
2002, City University of New York.
Harlan J. Protass, Adjunct Professor of Law. B.A., 1988, Cornell University; J.D., 1995,
Benjamin N. Cardozo School of Law, Yeshiva University.
Stephen Radin, Adjunct Professor of Law. B.A., 1980, Cornell University; J.D., 1983,
Columbia University.
Lauris G. L. Rail, Adjunct Professor of Law. B.A., 1974, J.D., 1977, University of
Virginia.
Eric Rayman, Adjunct Professor of Law. A.B., 1973, Harvard College; J.D., 1977,
Columbia University.
Jarrod Reich, Adjunct Professor of Law. B.A., 2001, Brandeis University; J.D., 2004,
Vanderbilt University.
Peter Rienecker, Adjunct Professor ofLaw. A.B., 1982, Boston College; J.D., 1985,
Harvard University.
Kenneth Rivlin, Adjunct Professor of Law. A.B., 1987, Brown University; J.D., 1994,
Boston University.
Hon. Stephen Robinson, Adjunct Professor of Law. B.A., 1979, J.D., 1984, Cornell
University.
Bridget M. Rohde, Adjunct Professor of Law. B.A., 1983, College of Notre Dame,
Baltimore, MD; J.D., 1986, University of Maryland.
Sharyn Rootenberg, Adjunct Professor ofLaw. B.A., 1990, State University of New York,
Albany; J.D., 1995, Benjamin N. Cardozo School of Law, Yeshiva University.
Michael Ross, Adjunct Professor of Law. B.A., 1971, Rutgers University; J.D., 1984,
New York University.
Lucille Roussin, Adjunct Professor of Law. B.A., 1969, M.A., 1971, M.Phil., 1973,
Ph.D., 1985, Columbia University; J.D., 1996, Benjamin N. Cardozo School of
Law, Yeshiva University.
Gail Rubin, Adjunct Professor of Law. B.A., 1977, Oberlin College; J.D., 1982,
University of Chicago.
Ben Rubinowitz, Adjunct Professor of Law. B.A., 1978, Boston University; J.D., 1981,
Hofstra University.
Gerald Russello, Adjunct Professor ofLaw. B.A., 1992, Georgetown University; J.D.,
1996, New York University.
Seema Tahir Saifee, Adjunct Professor of Law. A.B., 2001, Cornell University; J.D.,
2004, Fordham University.
Lisa Sbrana, Adjunct Professor of Law. B.S., 1987, University of the Pacific; J.D., 1993,
City University of New York, Queens.
Hon. Sara P. Schechter, Adjunct Professor of Law. A.B., 1965, Barnard College; J.D.,
1968, New York University.
Hon. Shira Scheindlin, Adjunct Professor of Law. B.A., 1967, University of Michigan;
M.A., 1969, Columbia University; J.D., 1975, Cornell University.
David Sciarra, Adjunct Professor of Law. B.A., 1974, University of California, Berkeley;
J.D., 1978, Temple University.
Paul Schoeman, Adjunct Professor of Law. A.B., 1991, Princeton University; J.D., 1995,
Harvard University.
Philip Segal, Adjunct Professor of Law. B.A., 1984, Columbia University; M.S.L., 2004,
Yale University; J.D., 2006, Benjamin N. Cardozo School of Law, Yeshiva
University.
Careen B. Shannon, Adjunct Professor of Law. B.A., 1981, Oberlin College; J.D., 1989,
City University of New York.
Fabio R. Silva, Adjunct Professor of Law. B.A., 1993, University of California, Santa
Barbara; J.D., 1998, Stanford University.
Daniel Silverman, Adjunct Professor of Law. B.S., 1963, LL.B., 1966, LL.M., 1967, New
York University.
Hon. Robert Smith, Adjunct Professor of Law. B.A., 1965, Stanford University; LL.B.,
1968, Columbia University.
John E. Sorkin, Adjunct Professor of Law. B.A., 1990, Yale University; J.D., 1994,
University of Chicago.
Steven S. Sparling, Adjunct Professorof Law. B.A., 1993, University of Massachusetts,
Amherst; J.D., 1998, Benjamin N. Cardozo School of Law, Yeshiva University.
Lee S. Sporn, Adjunct Professor of Law. B.A., 1980, Oberlin College; J.D., 1986,
Brooklyn Law School.
Mindy Stern, Adjunct Professor of Law. A.B., 1976, Lafayette College; J.D., 1982,
Rutgers University.
Michael H. Stone, Adjunct Professor of Law. B.A., 1969, State University of New York,
Binghamton; J.D., 1974, Brooklyn Law School; LL.M., 1978, New York
University.
Joseph Stulberg, Adjunct Professor of Law. B.A., 1967, Kalamazoo College; J.D., 1970,
New York University; M.A., Ph.D., 1975 University of Rochester.
Mariann Sullivan, Adjunct Professor of Law. B.A., 1972, Newton College of the Sacred
Heart; M.S., 1974, Columbia University; J.D., 1980, Fordham University.
John Richard Supple, Adjunct Professor of Law. B.A., 1985, Duke University; J.D.,
1989, University of Wisconsin.
Margaret Sweeney, Adjunct Professor of Law. J.D., 2001, Benjamin N. Cardozo School
of Law, Yeshiva University.
Eva Talel, Adjunct Professor of Law. B.A., 1970, City College, CUNY; J.D., 1973, New
York University.
Karen Denise Thompson, Adjunct Professor of Law. B.A., 1993, Carleton College; M.A.,
1998, New York University; J.D., 2003, Northwestern University.
Marshall Tracht, Adjunct Professor of Law. B.A., 1983, Yale University; M.B.A., J.D.,
1990, University of Pennsylvania.
John E. Tsavaris II, Adjunct Professorof Law. B.S., 1973, Pace University; M.S., 1977,
Queens College; Ph.D., 1981, Columbia University; J.D., 1987, Fordham
University.
Marian Underweiser, Adjunct Professor of Law. A.B., 1983, Harvard College; Ph.D.,
1992, University of California, Los Angeles; J.D., 1997, Columbia University.
Stephen A. Weiner, Adjunct Professor of Law. B.A., 1954, Harvard College; J.D., 1957,
Yale University.
Paul T. Weinstein, Adjunct Professor of Law. B.A., 1981, Colgate University; J.D., 1985,
Syracuse University.
Jaime Lauren Weiss, Adjunct Professor of Law. B.S., 1989, Cornell University; J.D.,
1992, Benjamin N. Cardozo School of Law, Yeshiva University.
Daniel M. Weitz, Adjunct Professor of Law. B.A., 1991, New York University; J.D.,
1996, Benjamin N. Cardozo School of Law, Yeshiva University.
David White, Adjunct Professor of Law. B.A., 1992, M.A., 1994, J.D., 2002, Fordham
University.
Leon Wildes, Adjunct Professor ofLaw. B.A., 1954, Yeshiva College; J.D., 1957, LL.M.,
1959, New York University.
Michael J. Wildes, Adjunct Professor ofLaw. B.A., 1986, Queens College; J.D., 1989,
Benjamin N. Cardozo School of Law, Yeshiva University.
Hope Brock Winthrop, Adjunct Professor of Law. B.A., 1971, Harvard College; J.D.,
1975, Boston University.
LAWYERING SKILLS AND LEGAL WRITING INSTRUCTORS
Peter Adelman, Adjunct Professor ofLaw. B.A., 1983, University of Rochester; J.D.,
1994, Benjamin N. Cardozo School of Law, Yeshiva University.
Mary Alestra, Adjunct Professor ofLaw. B.E., 1999, The Cooper Union; J.D., 2001,
Benjamin N. Cardozo School of Law, Yeshiva University.
Marshall B. Bellovin, Adjunct Professor of Law. B.A., 1965, University of North
Carolina; M.A., 1974, New York University; J.D., 1968, New York Law School.
Andrew S. Buzin, Adjunct Professor of Law. B.S., 2000, New York University; M.B.A.,
2002, J.D., 2003, University of Miami.
R. Michael Cestaro, Adjunct Professor ofLaw. B.A., 1988, J.D., 1992, Rutgers
University.
Kerin E. Coughlin, Adjunct Professorof Law. B.A., 1992, State University of New York,
Albany; J.D., 2002, Columbia University; M.A., 2003, City University of New
York
Richard Dearing, Adjunct Professor ofLaw. B.A., 1996, University of North Carolina;
J.D., 1999, Yale University.
Adria De Landri, Adjunct Assistant Professor of Law. A.B., 1980, Vassar College; J.D.,
1986, Benjamin N. Cardozo School of Law, Yeshiva University; LL.M., 2011,
University College London.
Ralph Fabrizio, Adjunct Professor of Law. B.S., 1978, Fairfield University; M.S., 1981,
John Jay College of Criminal Justice; J.D., 1984, St. John's University.
David T. Feuerstein, Adjunct Professor of Law. B.A., 1995, Yale University; J.D., 2001,
Benjamin N. Cardozo School of Law, Yeshiva University.
Michael Gerstein, Adjunct Professor of Law. B.A., 1970, City University of New York;
J.D., 1973, New York University.
Kristine Hamann, Adjunct Professor ofLaw. B.A., 1974, State University of New York,
Albany; J.D., 1977, Union University.
Barbara K. Hathaway, Adjunct Professor of Law. B.A., 1980, Mount Holyoke College;
J.D., 1983, George Washington University; LL.M., 2006, New York University.
Julie A. Interdonato, Adjunct Professor of Law. B.A., 1979, Columbia University; J.D.,
1983, New York Law School.
Alex Kriegsman, Adjunct Assistant Professor of Law. B.A., 1994, Lafayette College; J.D.,
1998, Benjamin N. Cardozo School of Law, Yeshiva University.
Victoria A. Kummer, Adjunct Professor of Law. B.A., 1980, Cornell University; J.D.,
1992, Benjamin N. Cardozo School of Law, Yeshiva University.
Steckley Lee, Adjunct Assistant Professor of Law. B.S., 2000, Clemson University; M.A.,
J.D., 2006, University of Florida.
Jolie Lehmann, Adjunct Professor of Law. B.A., 1995, University of Vermont; J.D., 1998,
Benjamin N. Cardozo School of Law, Yeshiva University.
Caroline Levy, Adjunct Professor of Law. B.A., 1990, Cornell University; J.D., 1993,
Georgetown University.
Burton N. Lipshie, Adjunct Professor of Law. B.S., 1964, LL.B., 1967, Columbia
University.
Bertrand Madsen, Adjunct Assistant Professor of Law. B.A., 1998, J.D., 1989, Cornell
University.
Robert Malchman, Adjunct Professor of Law. B.S., 1985, Massachusetts Institute of
Technology; J.D., 1989, University of Michigan.
Kevin McElroy, Adjunct Assistant Professor ofLaw. B.A., 1980, State University of New
York, Albany; J.D., 1986, St. John's University.
Michael Pantazakos, Adjunct Professor of Law. B.A., 1990, New York University; J.D.,
1994, Benjamin N. Cardozo School of Law, Yeshiva University.
Rebecca Price, Adjunct Assistant Professor ofLaw. B.A., 1995, Sarah Lawrence College;
J.D., 2002, City University of New York.
Jarrod F. Reich, Adjunct Professor of Law. B.A., 2001, Brandeis University; J.D., 2004,
Vanderbilt University.
Brandi Katz Rubin, Adjunct Professor of Law. B.A., 1996, University of Pennsylvania;
J.D., 1999, New York University.
Joel Shafferman, Adjunct Professor of Law. B.A., 1982, J.D., 1985, Hofstra University.
Cecilia A. Silver, Adjunct Assistant Professor of Law. A.B., 2000, Princeton University;
M.St., 2001, Oxford University; J.D., 2004, Georgetown University.
Alicia M. Simmons, Adjunct Assistant Professor of Law. B.A., 2003, University of
Pennsylvania; J.D., 2006, Georgetown University.
Lisa R. Volpe, Adjunct Professor of Law. B.A., 1978, Sarah Lawrence College; J.D.,
1989, Southwestern University.
Paul Weinstein, Adjunct Professor of Law. B.A., 1981, Colgate University; J.D., 1985,
Syracuse University.
Steven K. Weiss, Adjunct Professor of Law. B.A., 1992, Tufts University; J.D., 1996,
Benjamin N. Cardozo School of Law, Yeshiva University.
Sylvia Wertheimer, Adjunct Professorof Law. B.A., City University of New York; J.D.,
1976, New York University.
David Wirtz, Adjunct Professor of Law. B.A., 1969, Johns Hopkins University; J.D.,
1974, Cornell University.
Pauline H. Yoo, Adjunct Assistant Professor of Law. B.A., 1990, M.P.A., 1991, J.D.,
1994, Columbia University.
Joseph V. Zujkowski, Adjunct Assistant Professorof Law. B.A., 2004, Boston College;
J.D., 2007, Boston University.
Ben Zviti, Adjunct Assistant Professor of Law. B.A., 2003, New York University; J.D.,
2006, Benjamin N. Cardozo School of Law, Yeshiva University.
CARDOZO PUBLIC LAW, POLICY, AND ETHICS JOURNAL
MISSION STATEMENT
The Cardozo Public Law, Policy, and Ethics Journal is a multidisciplinary
publication dedicated to discussing and analyzing the policy implications of
governmental actions, how lawyers advocate in the public interest, and how the
ethical choices of legal workers affect the law and the public at large. The
Journal publishes writing in all areas of the law, including the Constitution,
criminal law, civil rights, the family, legal ethics, immigration, the environment, civil law, labor, animal rights, and sexual orientation. The Journal is
committed to a non-ideological investigation of issues, and accepts submissions
from philosophers, economists, sociologists, activists, lawyers, and other
professionals.
We also thank the following for our cover design:
Nathan King Design
311 Greenwood Avenue, Floor 1
New York, NY 11218
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