The ongoing saga of Skidmore v. Led Zeppelin (Zeppelin) is arguably the Ninth Circuit's most high-profile music infringement case in years. Although there were a number of significant rulings in the case, this article will focus on the Ninth Circuit's holding in late 2018 (905 F.3d 1116 (9th Cir. 2018)), that the scope of copyright in an unpublished pre-1978 musical composition is determined solely by the content of the deposit copy on file with the U.S. Copyright Office (USCO) for that work. I will call this the "Zeppelin holding," and as used by the Zeppelin court, consistent with the applicable 1909 Copyright Act, the term "unpublished" includes compositions made available in sound recording form, but not sheet music, at the time of the copyright registration. On March 9th, the Ninth Circuit affirmed the Zeppelin holding en banc, __ F.3d __, 2020 WL 1128808.

Background

Before the current Copyright Act took effect in 1978, the USCO only accepted deposit copies in written form. These deposits contained musical notation in standard format (Notation), and often included lyrics and chord symbols, like this:

This exclusive reliance on Notation leads to the problem that Zeppelin confronted, essentially for the first time: If the scope of the copyright in a musical work is limited to the details that were incorporated into the Notation submitted to the USCO, and those details are materially incomplete, relative to the recorded version of the work, it might be impossible for the composer to show an infringement of other significant elements of original authorship contained in the recorded version of the registered composition, no matter how direct and flagrant the defendant's copying of those other elements. There is a disconnect, in other words, between the music known and beloved by the public (and allegedly copied by the defendant) in its recorded form, and the notated music a court is willing to protect against infringement.

Because of this disconnect, if a deposit copy omits details that an infringer copies without authorization is it the Ninth Circuit's position that such infringement can never be actionable, because the copied elements are not in the Notation? Or is it potentially actionable if the plaintiff satisfies whatever administrative requirements the USCO currently deems necessary? What are those requirements? Is there a practical work-around? This article proposes one.

Definition: Undeposited Authorship

Many musical compositions, as released to the public, embody far more creative authorship than does the corresponding Notation deposited to register those compositions.

For present purposes, I will refer to all the musical material that is audible on the composer's publicly-released recording of a song, but not visible in the Notation, as the "Undeposited Authorship" of that song. It might take the form of an instantly-recognizable instrumental introduction, or a guitar solo, or vocal backgrounds, a bass line, an extra verse, or any other element of the song's composition or arrangement.

Reasonable minds may differ in particular cases about whether such musical elements should be considered part of the registered composition, or instead part of an arrangement of that composition, i.e., a derivative work; whether they are owned by the composer of the registered work or by someone else; whether they are original enough to pass muster under Feist; whether they are scenes a faire, etc. Those details may turn out to prevent a given plaintiff from prevailing on an infringement claim over unauthorized use of a particular piece of Undeposited Authorship, provided that some future court somewhere actually permits such a claim to proceed. If the original deposit copy cannot be amended, however – and the USCO currently says it cannot – how might a plaintiff protect such Undeposited Authorship?

The Work-Around

A composer should be able file a new, fresh, second application to cover previously Undeposited Authorship in an existing composition, supported by a deposit copy consisting of the original sound recording, which the law now permits. Perhaps the new registration could be called an "arrangement" of the originally registered composition, to avoid ambiguity about what it covers, and it could specifically disclaim the previously registered Notation and claim authorship only in the Undeposited Authorship. The USCO will not generally accept a second basic registration for a work that has already been registered, but that should not matter because a premise of the Zeppelin holding is that the Undeposited Authorship was never registered.

It appears that the USCO has already accepted such belated "arrangement" filings. To cite one example, a second "arrangement" registration was filed in 1988 for the 1968 Rolling Stones composition "Sympathy for the Devil." Here is the online record of that registration:

First, note that this is a Form PA registration, not Form SR, the type of work is "music" and the "new matter" authorship claim is for "arrangement and revised melodic line." It is not therefore a registration of the sound recording, despite the reference to "Beggars Banquet … 1 sound disc; 33/13 rpm, stereo.; 12 in. side 1 band 1," which appears to be a description of the deposit copy. "Beggar's Banquet" is in any case a pre-1972 sound recording, which the USCO would not have registered at the time of this filing in 1988.

The Rolling Stones are listed as performers, which is probably gratuitous because there is no claim for "performance" authorship; Jagger and Richards are credited with "words, music & arr[angement]". The previous registration of the song from 1968 is duly acknowledged, and the creation date of this new "arrangement," "written by" Jagger/Richards, is listed as 1968. It certainly appears that this registration covers the (previously-)Undeposited Authorship from the 1968 "Sympathy for the Devil," as recorded, though without further digging in the archives of the USCO, and especially without reviewing the correspondence between the filer and the USCO that is reflected in the registration record, it is impossible to say with certainty.

But whatever the details of this 1988 registration, whether the deposit was a sound recording or a notated transcription, new filings of this kind could prove extremely useful for composers whose works are poorly reflected by the Notation originally filed to represent them in the USCO. These new filings would not give composers the benefit of the original filing date, which would seem to be impossible without changes to USCO practice, but they face no bright-line obstacles in the statute, the Compendium III of Copyright Office practices or the federal regulations, and indeed the USCO appears to have granted such registrations with full knowledge of their relationship to prior registrations for the "same" work. And as Jagger/Richards may have done with this later filing for "Sympathy for the Devil," composers could make prophylactic filings of this kind now, to register their previously-Undeposited Authorship in particular works prior to any infringement. This would lock in their eligibility for statutory damages and attorney fees against post-registration infringers of the previously unregistered material. In the oral argument of the en banc review of Zeppelin, counsel for the government seemed to indicate that this procedure was consistent with the views of the USCO.

Conclusion

If the foregoing is correct, the Zeppelin holding does not establish a permanent bar to protecting Undeposited Authorship, but merely puts it in a category of authorship that hasn't yet been deposited. Using the above workaround, composers should be able to remedy the problem the Ninth Circuit identified in its Zeppelin ruling, all for the cost of a $55 filing fee. It appears to be too late for such a filing to benefit the plaintiff in Zeppelin, but now that the Ninth Circuit has flagged the issue it need not be an obstacle to other owners of copyright in pre-1978 musical works.

Bob Clarida is a partner at Reitler Kailas & Rosenblatt in New York, and is widely recognized for his expertise in copyright law. He is the author of the treatise Copyright Law Deskbook (BNA/Bloomberg) and is a co-author of the regular Copyright Law column in the New York Law Journal.