`
`No. 20-142
`IN THE
`Supreme Court Of The United States
`Michael Skidmore, as Trustee for the Randy Craig Wolfe
`Trust,
`
`Petitioner,
`
`v.
`Led Zeppelin et al., and Warner/Chappell Music, Inc.,
`Respondents
`
`
`
`
`
`On Petition for a Writ of Certiorari to the United States
`Court of Appeals for the Ninth Circuit
`MOTION FOR LEAVE TO FILE AMICUS CURIAE
`BRIEF AND BRIEF OF THE PULLMAN GROUP, LLC
`AND STRUCTURED ASSET SALES, LLC AS AMICUS
`CURIAE IN SUPPORT OF GRANTING THE PETITION
`W. Michael Hensley
`AlvaradoSmith
`1 MacArthur Place, Suite 200
`Santa Ana, CA 92707
`(714) 852-6835
`mhensley@alvaradosmith.com
`
`Counsel for The Pullman
`Group, LLC and Structured
`Asset Sales, LLC
`
`September 10, 2020
`
`
`
`
`
`1
`
`MOTION OF THE PULLMAN GROUP, LLC AND
`STRUCTURED ASSET SALES, LLC FOR LEAVE
`TO FILE A BRIEF AMICUS CURIAE IN SUPPORT
`OF GRANTING THE PETITION
`The Pullman Group, LLC and Structured
`Asset Sales, LLC (“Amici”) hereby move, pursuant to
`S. Ct. R. 37.2, for leave to file a brief amicus curiae in
`support of the petition for a writ of certiorari to the
`United States Court of Appeals for the Ninth Circuit.
`Amici are filing this motion because they have been
`unable to secure consent from Respondent.1 The
`proposed brief is attached.
`As more fully explained in the Statement of
`Interest of Amici Curiae beginning on page 1 of the
`attached brief, amici are concerned that the Ninth
`Circuit’s decision, if allowed to stand, will have
`serious negative repercussions for amici and the
`larger community of authors, artists and copyright
`owners. The brief of amici will assist the Court in
`determining whether to grant certiorari, because the
`brief elaborates on why the Ninth Circuit’s ruling on
`the so-called “deposit copy” issue erroneously limits
`basic, long-standing principles of copyright law based
`solely on administrative function of the United
`States Copyright Office.
`Just days after the erroneous Ninth Circuit
`decision was issued in Skidmore, its conclusion
`regarding the “deposit copy” issue was adopted by
`
`1 On August 13, 2020, counsel for Amici contacted counsel for
`Respondent, and asked whether Respondent would consent to
`Amici filing a brief in support of the Petition for Certiorari. On
`August 17, 2020, counsel for Respondent advised counsel for
`Amici that Respondent would not so consent.
`
`
`
`2
`
`
`the United States District Court for the Southern
`District of New York in Griffin v. Sheeran, 1:17-cv-
`05221-LLS (S.D.N.Y.) in a manner that materially
`restricts the ability of the plaintiffs in that case to
`litigate their copyright infringement case.2 Amicus
`Structured Asset Sales, LLC has brought two cases
`in the Southern District of New York based on the
`same core allegations of infringement as are at issue
`in the Griffin case. Structured Asset Sales, LLC v.
`Sheeran, 1:18-cv-05839-LLS (SAS I); Structured
`Asset Sales, LLC v. Sheeran, 1:20-cv-4329-RA (SAS
`II).
`
`At the heart of all three cases is the allegation
`that the 1973 musical composition “Let’s Get it On” –
`written by Marvin Gaye and Edward Townsend and
`performed by Gaye – has been infringed by the 2014
`release of “Thinking Out Loud,” written by Ed
`Sheeran and Amy Wadge and performed by Sheeran.
`The SAS II matter – in fact – was filed in partial
`response to the Skidmore and Griffin “deposit copy”
`decisions, and bases its claims of infringement not
`only on the 1973 registrations for “Let’s Get it On,”
`but also on an additional registration for that
`composition secured in 2020, using the 1973 sound
`recording of “Let’s Get it On” as its deposit copy.
`The potential for adoption of the erroneous
`Skidmore deposit copy holding in the two Structured
`Asset Sales matters presents a direct threat to the
`ability of amici to litigate their claims and protect
`their financial interests as beneficial copyright
`owners.
`
`
`2 Griffin v. Sheeran, No. 1:17-cv-05221-LLS (S.D.N.Y. March 24,
`2020) (ECF 121).
`
`
`
`3
`
`t h a t
`r e s p e c t f t i l l y r e q u e s t
`Accordingly,
`the Court grant leave to file the attached brief as
`a m i c i c u r i a e .
`
`Respectfiilly submitted.
`
`/
`
`Attorney for kici Curiae น
`The Pullman Group, LLC and
`Structured Asset Sales, LLC
`
`
`
`
`
`i
`
`TABLE OF CONTENTS
`MOTION OF THE PULLMAN GROUP, LLC AND
`STRUCTURED ASSET SALES, LLC FOR LEAVE
`TO FILE A BRIEF AMICUS CURIAE IN SUPPORT
`OF GRANTING THE PETITION .............................. 1
`TABLE OF CONTENTS .............................................. i
`TABLE OF AUTHORITIES ...................................... iii
`INTEREST OF AMICUS CURIAE ............................ 1
`SUMMARY OF ARGUMENT .................................... 4
`ARGUMENT ............................................................... 8
`I. ........... THIS COURT SHOULD GRANT THE
`PETITION FOR CERTIORARI TO HALT
`THE GROWING INFLUENCE OF THE
`NINTH CIRCUIT’S ERRONEOUS
`INTERPRETATION OF THE “DEPOSIT
`COPY” REQUIREMENTS ............................... 8
`II. . DEPOSIT COPIES IDENTIFY – BUT ARE
`NOT IDENTICAL TO – UNDERLYING
`COPYRIGHTED WORKS .............................. 14
`III. ..... SONGWRITERS DO NOT BEHAVE AS
`THE NINTH CIRCUIT, RESPONSDENTS
`AND THEIR AMICI SUGGEST .................... 17
`IV. ...... THIS COURT SHOULD ALSO GRANT
`THE PETITION IN ORDER TO ADDRESS
`THE PROPER STANDARD FOR
`COPYRIGHT INFRINGEMENT OF
`MUSICAL COMPOSITIONS BASED ON THE
`“SELECTION AND ARRANGEMENT” OF
`ELEMENTS ................................................... 18
`
`
`
`ii
`
`ii
`
`
`CONCLUSION .......................................................... 22
`
`
`CONCLUSION .......................................................... 22
`
`
`
`
`
`iii
`
`TABLE OF AUTHORITIES
`
`Cases
`Feist Publications, Inc. v. Rural Tel. Serv. Co., 499
`U.S. 340 (1991) ................................................ 19, 20
`Goldstein v. California, 412 U.S. 546 (1973) 5, 8, 9, 10
`Harper & Row Publishers, Inc. v. Nation
`Enterprises, 471 U.S. 539 (1985) .......................... 20
`Swirsky v. Carey, 376 F.3d 841 (9th Cir. 2004), as
`amended on denial of reh'g (Aug. 24, 2004) ... 20, 22
`Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th
`Cir. 2000) ......................................................... 21, 22
`White-Smith Music Pub. Co. v. Apollo Co., 209 U.S. 1
`(1908)) .................................................. 12, 13, 14, 15
`
`
`Statutes
`Copyright Act of 1909 ........................................ passim
`Copyright Act of 1976 ........................................ passim
`
` Other Authorities
`1 M. Nimmer & D. Nimmer, Nimmer on Copyright §
`2.05[A] (2017) .................................................. passim
`1 M. Nimmer & D. Nimmer, Nimmer on Copyright §
`2.11.[D] (2017) ....................................................... 20
`1 M. Nimmer & D. Nimmer, Nimmer on Copyright §
`3.03 (2017).............................................................. 20
`Brief of Amici Curiae 123 Songwriters, Musicians
`and Producers, Along with NSAI and SONA (July
`30, 2019) (Ninth Cir. Dkt. 118-2) .......................... 18
`Compendium of Copyright Office Practices §
`2.6.1.II.a (1st ed. 1967) .................................... 10, 11
`
`
`
`iv
`
`
`Copyright Office, “Circular 61: Copyright
`Registration of Computer Programs” (Rev. Sept.
`2017) ....................................................................... 17
`Denicola, Copyright in Collections of Facts: A Theory
`for the Protection of Nonfiction Literary Works, 81
`Colum.L.Rev. 516 (1981) ....................................... 20
`
`
`
`
`
`
`
`1
`
`INTEREST OF AMICUS CURIAE1
`Structured Asset Sales, LLC (“SAS”) is a
`Limited Liability Company, which invests in and
`owns rights to thousands of songs and musical
`compositions and is owned by David Pullman, based
`in Los Angeles, California who is its Founder,
`Chairman and CEO, as well as the Founder,
`Chairman and CEO of The Pullman Group, LLC, the
`creator of all Pullman Bonds, the first ever music,
`entertainment and intellectual property including
`copyright asset backed securitizations of any kind in
`history including the world famous financial
`landmark $55 million transaction rated single-A
`level by multiple ratings agencies Pullman Bond for
`David Bowie, and Pullman Bond series for the
`Motown Hit Machine, Holland Dozier Holland, R & B
`Royalty, Ashford & Simpson, The Godfather of Soul,
`James Brown and The Isley Brothers, among others
`backed by copyrights worth hundreds of millions of
`dollars. See www.pullmanbonds.com.
`SAS is a beneficial owner of one-third of all of
`the copyright rights of the catalog of songwriter
`Edward Townsend, including the musical
`composition “Let’s Get it On.” “Let’s Get it On” was
`written and produced by Townsend and Marvin Gaye
`in 1973, registered internationally in 1973, and
`
`
`1 No counsel for a party authored this brief in whole or in part,
`and no such counsel or party made a monetary contribution
`intended to fund the preparation or submission of this brief. No
`person other than the Amici, or their counsel, made a monetary
`contribution intended to fund its preparation or submission.
`The parties have been given at least 10 days notice of Amici’s
`intention to file this brief.
`
`
`
`2
`
`
`renewed with the United States Copyright Office in
`2000.
`
`SAS is the plaintiff in two cases currently
`pending before the United States District Court for
`the Southern District of New York, Structured Asset
`Sales, LLC v. Sheeran, 1:18-cv-05839-LLS (SAS I);
`Structured Asset Sales, LLC v. Sheeran, 1:20-cv-
`4329-RA (SAS II). In those cases, SAS alleges that
`Mr. Sheeran’s 2014 song, “Thinking Out Loud,”
`infringes the copyright in the composition “Let’s Get
`it On.” In SAS I, SAS’s copyright infringement
`claims arise from the two registrations issued in
`1973 for the “Let’s Get it On” composition, both of
`which used “lead sheet” sheet music as their deposit
`copies. The copyright infringement claims in SAS II
`arise from the two 1973 registrations and a
`registration secured in 2020 for the “Let’s Get it On”
`composition, which used the 1973 sound recording of
`the song as its deposit copy.
`Cases – like SAS I and SAS II – involving
`infringement of musical compositions that were
`registered before the U.S. Copyright Office allowed
`for the submission of sound recordings as deposit
`copies for compositions are being are being affected,
`and will continue to be affected by the Skidmore
`ruling and by other courts that choose to follow
`Skidmore. Similarly, the portions of the en banc
`decision addressing copyright protection arising from
`“selection and arrangement” of elements speak
`directly to the arguments in many cases of non-
`literal, but nevertheless actionable, copying of
`musical compositions.
`
`
`
`
`
`3
`
`Amici have an interest in maintaining the
`broad protection granted under the Copyright Act to
`the copyrighted works they own and in which they
`invest, including “Let’s Get it On.” They also have
`an interest in preventing the spread of the rulings of
`the Ninth Circuit in Skidmore from being upheld or
`adopted by other Circuits.
`
`
`
`
`
`4
`
`SUMMARY OF ARGUMENT
`The Copyright Act grants owners of musical
`compositions a broad set of rights in connection with
`the works they own, including the right to bring
`actions against those who would infringe their rights
`by copying, performing or distributing musical
`compositions or recordings that are substantially
`similar to, and thus infringing of, the registered
`compositions.
`Both the Copyright Act of 1976 (the “1976
`Act”), and its predecessor from 1909 (the “1909 Act”),
`required copyright registrants to submit “deposit”
`copies of their works. Under the 1909 Act, the U.S.
`Copyright Office would only accept sheet music, or
`equivalent writings using various notation systems,
`as deposit copies in connection with musical
`compositions. Beginning with the enactment of the
`1976 Act, the U.S. Copyright Office accepted musical
`recordings – such as vinyl records, tapes, CDs and
`digital files – as deposit copies for applications for
`the registration of musical compositions.
`It is Respondents’ position (and that of the
`Ninth Circuit, sitting en banc) that in copyright
`infringement actions brought by the owners of
`musical compositions registered under the 1909 Act,
`the scope of the plaintiff’s rights is limited to the
`musical notations on the sheet music submitted to
`the U.S. Copyright Office as deposit copies, to the
`exclusion of any elements of the musical composition
`not found on the deposited sheet music, such as
`elements one might hear in a recording of such
`composition. It is also their position that for musical
`compositions registered following the enactment of
`
`
`
`5
`
`
`the 1976 Act, when the U.S. Copyright Office
`accepted musical recordings as deposit copies, the
`scope of plaintiff’s rights expanded to the bounds of
`whatever was submitted as a deposit copy, including
`musical recordings.
`Amici disagree, and take the position that
`plaintiffs bringing actions for copyright infringement
`based on musical compositions registered under the
`1909 Act are not limited in their claims to the sheet
`music submitted as deposit copies, but rather may
`argue that the registered composition includes
`additional elements, and is entitled to present
`evidence in support of that position.
`As amici explain, the Ninth Circuit, sitting en
`banc, appears to have failed to follow this Court’s
`admonition regarding interpretation of the Copyright
`Act: “The Act … should not be read as if they were
`written today, for to do so would inevitably distort
`[its] intended meaning.” Goldstein v. California, 412
`U.S. 546, 564 (1973).
`Professors Nimmer explain – in a section of
`their treatise cited with approval by Respondents
`and the Ninth Circuit sitting en banc – that the
`reason the U.S. Copyright Office did not allow
`applicants for the registration of musical
`compositions to submit recordings as deposit copies
`was because – at that time – the law did not
`recognize that musical recordings could infringe
`musical compositions. According to Nimmer, with
`the enactment of the 1976 Act, and the recognition
`that musical recordings could infringe musical
`compositions, the U.S. Copyright Office changed its
`
`
`
`6
`
`
`policies to allow submission of musical recordings as
`deposit copies for musical compositions.
`Musical compositions registered before the
`U.S. Copyright Office changed its policies have sheet
`music on file with the Copyright Office because, and
`only because, the Copyright Office was laboring
`under a policy based on a legal principle which has
`since been abrogated, in favor of the modern view
`that musical compositions clearly can, and often do,
`embody more than is shown using musical notation
`on sheet music. Prohibiting plaintiffs from
`introducing evidence beyond the sheet music to
`demonstrate the breadth of their musical
`compositions, based on the historical policies of the
`Copyright Office, has the effect of robbing those
`plaintiffs of the full protections granted to them by
`the Copyright Act.
`To put it another way, Respondents’ position
`suggests that if the creators of musical compositions
`had not diligently registered their compositions, but
`rather waited a number of years until they could file
`recordings as deposit copies, they would have been
`rewarded for their delay by a grant of broader
`protection for their compositions. Such an outcome
`would be unfair, and would run contrary to the well-
`established principle under Copyright Law of
`rewarding early movers, for example through access
`to a wider range of damages if their registrations
`precede the alleged infringements.
`In this case, and in numerous other cases now
`pending around the country, including Griffin, SAS I
`and SAS II, courts should recognize that plaintiffs’
`pre-1976 Act copyright registrations for musical
`
`
`
`7
`
`
`compositions encompass all elements of those
`compositions, whether or not shown on the sheet
`music on file at the U.S. Copyright Office, and those
`courts should make evidentiary rulings in accordance
`with that recognition, without binding plaintiffs’
`hands and limiting their ability to make their
`infringement arguments, either.
`Amici respectfully request that this Court
`grant Petitioner’s petition for a writ of certiorari so
`that due consideration may be given to this
`important issue.
`
`
`
`
`
`8
`
`I.
`
`ARGUMENT
`THIS COURT SHOULD GRANT THE
`PETITION FOR CERTIORARI TO HALT
`THE GROWING INFLUENCE OF THE
`NINTH CIRCUIT’S ERRONEOUS
`INTERPRETATION OF THE “DEPOSIT
`COPY” REQUIREMENTS
`This Court should find that musical
`compositions registered prior to the enactment of the
`1976 Act may include elements not reflected in the
`sheet music on file with the U.S. Copyright Office.
`In Goldstein v. California, a case cited with
`approval several times by the Ninth Circuit en banc,
`this Court noted the following:
`To interpret accurately Congress'
`intended purpose in passing the 1909
`Act and the meaning of the House
`Report petitioners cite, we must
`remember that our modern
`technology differs greatly from that
`which existed in 1909. The Act and
`the report should not be read as if
`they were written today, for to do so
`would inevitably distort their
`intended meaning; rather, we must
`read them against the background of
`1909, in which they were written.
`Goldstein v. California, 412 U.S. 546, 564 (1973).
`This Court went on to explain that as the
`Copyright Act was amended and replaced in 1873,
`then 1909, and then 1976, the conception of what a
`
`
`
`9
`
`
`“copy” could be, and thus what was entitled to
`protection, expanded. This happened, in large part,
`because of the development of new technology that
`had not even been conceived of under the prior
`iteration of the law:
`In 1831, Congress first extended
`federal copyright protection to
`original musical compositions. An
`individual who possessed such a
`copyright had the exclusive authority
`to sell copies of the musical score;
`individuals who purchased such a
`copy did so for the most part to play
`the composition at home on a piano
`or other instrument. Between 1831
`and 1909, numerous machines were
`invented which allowed the
`composition to be reproduced
`mechanically….It is against this
`background that Congress passed the
`1909 statute. After pointedly waiting
`for the Court's decision in White-
`Smith Music Publishing Co.,
`Congress determined that the
`copyright statutes should be
`amended to insure that composers of
`original musical works received
`adequate protection to encourage
`further artistic and creative effort.
`Goldstein v. California, 412 U.S. 546, 564 (1973)
`(citing White-Smith Music Pub. Co. v. Apollo Co., 209
`U.S. 1 (1908)).
`
`
`
`
`
`10
`
`The advent of reproduction technology for
`music – starting with piano rolls with perforations
`and moving into analog and then digital recording
`technology – changed and continues to change our
`collective conception of what the Copyright Act
`should protect.
`That the Copyright Office only accepted sheet
`music as deposit copies under the 1909 Act is
`entirely consistent with the historical framework
`Goldstein provides, for just as it had not yet dawned
`on us to consider nascent or unborn technology to be
`a “copy” of music for protection purposes, the
`Copyright Office was not accepting piano rolls as
`deposit copies for musical compositions.
`Today (and since the enactment of the 1976
`Act) it is beyond question that musical recordings are
`entitled to copyright protection, and can serve as
`deposit copies for registrations of both recordings and
`compositions. This is not unlike the en banc’s court’s
`observation that “[a]lthough it seems unthinkable
`today, musical compositions were not explicitly
`subject to copyright in the United States until
`1831….” Op. at 16. It is inconsistent and unfair to
`creators of earlier works, however, to expand the way
`in which we think about musical compositions to
`protect works registered once recordings were
`accepted as deposit copies, providing greater
`protection that those registered before.
`The en banc court makes a point of quoting the
`1967 edition of the Copyright Compendium,
`explaining:
`
`
`
`
`
`11
`
`At the time that Taurus was
`registered, the Copyright Office’s
`practice regarding applications to
`register unpublished musical
`compositions was to consider
`“writ[ing] to the applicant, pointing
`out that protection extends only to
`the material actually deposited, and
`suggesting that in his own interest he
`develop his manuscript to supply the
`missing element.” The inescapable
`conclusion is that the scope of the
`copyright is limited by the deposit
`copy.
`Op. at 20 (citing Compendium of Copyright Office
`Practices § 2.6.1.II.a (1st ed. 1967) (emphasis
`added)).
`In the view of amici, rather than supporting
`the Ninth Circuit’s conclusion, this quote from the
`original Compendium highlights the limitations of
`the thinking of the time, and to give it too much
`weight runs afoul of this Court’s admonishment from
`1973 in Goldstein: “The Act and the report should
`not be read as if they were written today, for to do so
`would inevitably distort their intended meaning.”
`In its opinion, the Ninth Circuit provided this
`limited quote from Nimmer on Copyright:
`Significantly, the Copyright Office
`did not even accept sound recordings
`as deposit copies. Indeed, “in order to
`claim copyright in a musical work
`under the 1909 Act, the work had to
`
`
`
`
`
`12
`
`be reduced to sheet music or other
`manuscript form.”
`Op. at 18 (quoting 1 M. Nimmer & D. Nimmer,
`Nimmer on Copyright § 2.05[A] (2017)).
`The Ninth Circuit, however, however, did not
`provide the full context of Professors Nimmers’
`explanation, which is found under the heading “The
`Diminished Significance of Visible Notation”:
`[A] The Diminished Significance of
`Visible Notation
`A musical work is entitled to
`copyright as long as it is “fixed in any
`tangible medium of expression,”
`regardless of the nature of that
`medium. Specifically, it is no longer
`necessary, as formerly, that the
`medium be visibly intelligible. The
`fact that the grooves on a phonograph
`record may not be “read” is no bar to
`the copyrighting of a musical work by
`fixing it in record form. It is, thus,
`possible to obtain statutory copyright
`over a work merely by recording it,
`although the composer is unable or
`unwilling to reduce the work to
`written form in conventional musical
`notation.
`This rule represents a sweeping
`departure from the 1909 Act; it
`constitutes an intentional overruling
`of White-Smith Music Co. v. Apollo
`Co., in which the Supreme Court held
`
`
`
`
`
`13
`
`that, in order to constitute a “copy”
`within the meaning of then-extant
`copyright law, there must be “a
`written or printed record in
`intelligible notation.” The Court
`concluded that an unauthorized
`manufacturer and seller of perforated
`music on paper (piano rolls) was not
`an infringer, as piano rolls failed to
`qualify as “copies” under the above
`definition, as they lacked a visibly
`“intelligible notation.”
`1 M. Nimmer & D. Nimmer, Nimmer on Copyright §
`2.05[A] (2017) (citing White-Smith Music Pub. Co. v.
`Apollo Co., 209 U.S. 1 (1908)) (emphasis added).
`The Ninth Circuit’s very limited quotation
`from Nimmer robbed the passage of its proper
`meaning. What Professors Nimmer were saying is
`that the prior policy of the U.S. Copyright Office to
`accept only sheet music or equivalent written
`notational forms as deposit copies existed only
`because of the state of copyright infringement law at
`the time, and when infringement law changed, the
`policy changed with it. It would be inconsistent and
`inequitable to limit the scope of rights of copyright
`holders on this basis.
`Indeed, Congress was careful to include the
`following in the “Transitional and Supplementary
`Provisions” of the 1976 Act: “All causes of action that
`arose under title 17 before January 1, 1978, shall be
`governed by title 17 as it existed when the cause of
`action arose.” PL 94–553 (S 22), PL 94–553, October
`19, 1976, 90 Stat 2541. They did so to “make[] clear
`
`
`
`14
`
`
`that a cause of action existing on January 1, 1977, is
`to be governed by the law under which it arose.”
`H.R. Rep. 94-1476, 182, 1976 U.S.C.C.A.N. 5659,
`5798. The obvious corollary is that infringement
`cases arising in the late 2010s, although involving
`copyright registrations granted in the early 1970s,
`would enjoy the expanded benefits of the modern
`view that musical compositions can embody a wide
`range of elements that may or may not be reflected
`in sheet music – as Nimmer’s own explanation
`demonstrates.
`DEPOSIT COPIES IDENTIFY – BUT ARE
`II.
`NOT IDENTICAL TO – UNDERLYING
`COPYRIGHTED WORKS
`The Ninth Circuit’s approach (and that of
`Respondents when they were before the Ninth
`Circuit) continues to dance carefully around the fact
`that Nimmer on Copyright said something that
`terrifies Respondents, and is inconvenient for the en
`banc Court’s conclusion, an acknowledgement by the
`copyright luminaries that, prior to 1978, the
`Copyright Office only accepted sheet music as deposit
`copies for musical compositions, not as a limitation
`on the scope of the copyright, but because at that
`time that was the only accepted way to “publish” a
`composition:
`Although White-Smith was decided
`the year before enactment of the 1909
`Act, its doctrine became a part of that
`Act. It was applied, for example, to
`phonograph records and to magnetic
`tape, neither of which could be said to
`embody intelligible notations and
`
`
`
`
`
`15
`
`hence did not qualify as copies of the
`musical works thereby recorded.
`Because, under the 1909 Act,
`copyright protection required the
`placement of notice on copies (and
`likewise the deposit of copies), it
`followed that a musical work could
`not claim copyright unless the notice
`and deposit requirements were
`satisfied with respect to an object
`that constituted a visibly intelligible
`notation. Therefore, in order to claim
`copyright in a musical work under
`the 1909 Act, the work had to be
`reduced to sheet music or other
`manuscript form. (As an alternative,
`however, a musical composition
`recorded on a motion picture sound
`track could be protected under the
`motion picture copyright, even
`though not reduced to visibly
`intelligible notation.)
`1 M. Nimmer & D. Nimmer, Nimmer on Copyright §
`2.05[A] (2017) (citing White-Smith Music Pub. Co. v.
`Apollo Co., 209 U.S. 1 (1908)) (emphasis added).
`We respectfully ask the Court to remember
`that musical compositions – like dance and other
`forms of art – are by their nature ephemeral.
`Musical notation is a way of trying to capture the
`ephemeral in the physical, but it is and has always
`been limited in its ability to capture every nuance of
`the work. Even musical recordings have their
`limitations, and the different types of recording
`technology have their respective advantages and
`
`
`
`16
`
`
`disadvantages – just ask any staunch proponent of
`vinyl records whether they enjoy listening to music
`on CD or over the Internet!
`Similarly, when it comes to computer
`programs, the Copyright Office allows the deposit of
`portions of the underlying computer code, both
`because of the sheer size of some programs, as well
`as the need to maintain secrecy of the code:
`Code without Trade Secret Material
`If the source code does not contain
`trade secrets, submit one copy of the
`first twenty-five pages and last
`twenty-five pages of the source code
`for the specific version you want to
`register….
`Code with Trade Secret Material
`If the source code does contain trade
`secrets, you must indicate in writing
`to the Office that the code contains
`trade secret material. Using one of
`the following options, submit a
`portion of the code for the specific
`version you want to register:
`• One copy of the first ten pages
`and last ten pages, blocking out none
`of the code;
`• One copy of the first twenty-five
`pages and last twenty-five pages,
`blocking out the portions of the code
`containing trade secret material,
`
`
`
`
`
`17
`
`provided the blocked out portions are
`less than fifty percent of the
`deposit;…
`Copyright Office, “Circular 61: Copyright
`Registration of Computer Programs” (Rev. Sept.
`2017).
`Deposit copies do not, and were never meant
`to be, a limitation on the scope of the copyright they
`represent. They serve an identifying function, but do
`not take the place of the underlying creation.
`III. SONGWRITERS DO NOT BEHAVE AS THE
`NINTH CIRCUIT, RESPONSDENTS AND
`THEIR AMICI SUGGEST
`The en banc Court wrote that “[t]he purpose of
`the deposit is to make a record of the claimed
`copyright, provide notice to third parties, and
`prevent confusion about the scope of the copyright.”
`Op. at 18. Respondents before the Ninth Circuit and
`their supporting amici advanced much more strident
`versions of that same argument, predicting the dire
`consequences that would arise from a determination
`that deposit copies do not limit the scope of the
`underlying copyrighted compositions, one of them
`writing, for example, that “[s]ongwriters know and
`assume that copyrights are limited in scope by what
`is deposited with the Copyright Office, and if that
`rule is changed, it will stifle creation of new works
`
`
`
`18
`
`
`because the deposit copies will no longer be reliable
`guides as to the scope of prior copyrights.”4
`This type of thinking suggests that
`songwriters not only research what works have been
`granted copyrighted registrations previously, but
`further research what was deposited with the
`Copyright Office in connection with those works, in
`order to determine the scope of those registrations.
`Even if songwriters behaved in such a way (and
`surely they do not), deposit copies are not readily
`available, and the retrieval process is neither simple
`nor speedy. Songwriters do not pull deposit copies
`from the Copyright Office during their creative
`process, and thus clarifying the relevance of deposit
`copies to the scope of copyrighted compositions will
`have no impact whatsoever on, and no prejudice to,
`the creative process of songwriters. To suggest
`otherwise is simply not credible, and the Court
`should not let this irrational argument cloud its
`analysis. Moreover, if Respondents suggest that
`songwriters knowingly and purposefully limit their
`copying to works released before 1978 (when deposit
`copies were limited to sheet music by operation of the
`Copyright Office), on the mistaken assumption that
`the registrations for the copied compositions do not
`cover the portions infringed, we would suggest this
`Court discourage them from doing so.
`IV. THIS COURT SHOULD ALSO GRANT THE
`PETITION IN ORDER TO ADDRESS THE
`PROPER STANDARD FOR COPYRIGHT
`INFRINGEMENT OF MUSICAL
`
`4 Brief of Amici Curiae 123 Songwriters, Musicians and
`Producers, Along with NSAI and SONA (July 30, 2019) (Ninth
`Cir. Dkt. 118-2) at 11.
`
`
`
`
`
`19
`
`COMPOSITIONS BASED ON THE
`“SELECTION AND ARRANGEMENT” OF
`ELEMENTS
`Amici also endorse the Petition for Certiorari
`as it relates to the proper understanding of copyright
`protection for “selection and arrangement” of
`elements. As Petitioner has explained, the en banc
`court has improperly narrowed the important
`holding of this Court’s holding in Feist.
`The en banc court invents a distinction that
`simply does not exist in Feist and its progeny. It
`appears to be the view of the Ninth Circuit that
`“selection and arrangement” requires a level of
`sophistication beyond an assemblage of elements, but
`the en banc court gives absolutely no clue as to how
`to identify what does and does not qualify for such
`treatment. Besides being entirely unworkable, that
`constrained interpretation finds no support in Feist,
`where this Court made clear that unprotectable
`common elements are protectible when combined in
`an original combination:
`Factual compilations, on the other
`hand, may possess the requisite
`originality. The compilation author
`typically chooses which facts to
`include, in what order to place them,
`and how to arrange the collected data
`so that they may be used effectively
`by readers. These choices as to
`selection and arrangement, so long as
`they are made independently by the
`compiler and entail a minimal degree
`of creativity, are sufficiently original
`
`
`
`
`
`20
`
`that Congress may protect such
`compilations through the copyright
`laws. Thus, even a directory that
`contains absolutely no protectible
`written expression, only facts, meets
`the constitutional minimum for
`copyrigh
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