Musical Albums as Compilations: A Limitation on Damages or a Trojan Horse Set to Ambush Termination Rights

Abstract

Under the Copyright Act of 1976, “compilations” receive rather unique treatment. First, courts may limit the amount of damages that an author of a “compilation” can recover for infringement. Should the copyright holder of a “compilation” opt for an award of statutory damages, courts will award only one statutory damages amount for the entire compilation rather than an award for each work that it comprises, even if the works contained therein are independent and separately registered. Additionally, a compilation is one of only a few types of works that can assume “work for hire” status if commissioned as a “work for hire.” The designation as a “work made for hire” is particularly relevant for termination of transfers available under the Copyright Act. Generally speaking, an author has the opportunity to reclaim the copyright in his or her work by terminating a transfer previously made to another. “Works made for hire,” however, are not subject to termination of transfers. Therefore, a creator of a “compilation” constituting a “work made for hire” loses the right to terminate that transfer. In Bryant v. Media Right Productions, a 2010 case concerning statutory damages for the alleged infringement of the copyrights in two musical albums, the Second Circuit held that albums are compilations. The court found that the songs that made up the album were “pre-existing materials” that were selected and arranged in an original way, to result in a compilation. Thus, the plaintiffs in Bryant were only able to recover a single statutory damage award for infringement of their copyright in the album. Although the holding in Bryant addressed statutory damages for “compilations,” it may have other consequences beyond those intended by the court. In Bryant, the Second Circuit followed the language of the Act in deciding that albums are “compilations” for the purposes of determining statutory damage awards, but the court failed to acknowledge that doing so would also mean that albums would now be considered works made for hire. Musicians could begin losing the ability to terminate transfers of their music, in direct conflict with Congress’s purpose behind the termination-of-transfer and work-made-for-hire doctrines. One issue with the Second Circuit’s holding in Bryant is that the legislative history of the Copyright Act gives reason to question labeling an album as a “compilation.” Further, the court failed to acknowledge the termination issue lurking in the shadows, which it should have done given the consequences of its holding.