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Source: http://www.woodwind.org/clarinet/Misc/46DLJ241noframe.html Volume 46, No. 2 of the Duke Law Journal 46 DUKE L.J. 241 (1996) Copyright © 1996 by Duke Law Journal Excerpted article.

B. The Inadequate Caselaw Only one federal appellate decision in the last forty years discusses the standard of originality necessary for a new musical composition to constitute a copyrightable derivative work. In Woods v. Bourne Co.,61 the Second Circuit held that several versions of “When the Red, Red, Robin Comes Bob, Bob, Bobbin' Along” were insufficiently original to constitute copyrightable derivative works.62 Although the opinion does not reprint the original song or subsequent versions of it, the court's discussion is helpful. In 1926, Harry Woods brought a “lead sheet,” consisting of the melody and lyrics of the song, to Irving Berlin, Inc., whose in-house “technicians” then added harmony and made other changes.63 Finding the differences between Woods' lead sheet and the subsequent “piano-vocal” version that was eventually published to be insubstantial, the district court held the piano-vocal version to be unoriginal.64 It also found unoriginal a 1981 version of the song that substituted a moving bass line for the piano-vocal harmony, which had primarily consisted of quarter notes on the first and third beats of every measure.65 The Second Circuit affirmed both these holdings, approving the legal standard required by the district court:

[S]omething of substance [must be] added making the piece to some extent a new work with the old song embedded in it but from which the new has developed. It is not merely a stylized version of the original song where a major artist may take liberties with the lyrics or the tempo, the listener hearing basically the original tune. ... [C]ocktail pianist variations of the piece that are standard fare in the music trade by any competent musician [do not suffice].66

The Second Circuit emphasized that a “trivial variation” from the first work or the mere “demonstration of `physical skill’ or `special training’” was not enough.67 Although the circuit court approved of the district court's factual inquiry into whether the piano-vocal arrangement was the result of the application of “conventional rules of harmony,”68 it did not endorse the district court's dictum that a derivative work must contain “unusual vocal treatment, additional lyrics of consequence, unusual altered harmonies, [and] novel sequential uses of themes.”69 Most importantly, the opinion recognizes the role played by a substantial originality standard in taking “`a weapon for harassment [from] the hands of mischievous copiers intent on appropriating and monopolizing public domain work.’”70 61. 60 F.3d 978 (2d Cir. 1995) (Woods II). 62. The issue of whether the versions of the song were derivative works was made relevant by 17 U.S.C. § 304(c)(1)-(3) (1994), which gives an author, or his heirs, the right to terminate an improvident assignment of copyright at the end of the renewal term. However, this termination right, along with the right to capture continuing royalties, does not extend to original derivations of the assigned copyrighted work prepared before the termination of the assignment. See Woods II, 60 F.3d at 986. For example, Woods' heirs terminated Woods' assignment of the copyright of the song at issue to the predecessor in interest of Bourne Music. Bourne argued that the versions of the song that continued to generate royalties for it were original derivative works and therefore immune from the heirs' claims. Thus, the right to the royalties fumed on whether the income-producing versions of the song were sufficiently original to constitute derivative works. In their reliance on precedent involving arrangements of public domain musical works, the district court and the Second Circuit both presumed that the standard of originality for derivative musical works in the termination context is the same as that applied in the context of arrangements of public domain music. See id. at 990-91. 63. See id. at 981, 989, 992. 64. Woods I, 841 F. Supp. 118, 121 (S.D.N.Y. 1994), aff'd in part and rev'd in part, 60 F.3d 978 (2d Cir. 1995). 65. Woods II, 60 F.3d at 993. 66. Id. at 991 (quoting Woods I, 841 F. Supp. at 121). 67. Id. at 990 (citing L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 491 (2d Cir. 1976) (en banc)). 68. Id. at 992. 69. Id. at 990 (quoting Woods I, 841 F. Supp. at 121). 70. Id. (quoting Batlin, 536 F.2d at 492). The court also endorsed the Seventh Circuit's opinion in Gracen v. Bradford Exchange, 698 F.2d 300 (7th Cir. 1983) (mimetic painting of Dorothy taken from a scene of the motion picture The Wizard of Oz not an original derivative work), that “advised special caution in analyzing originality in derivative works, since too low a threshold will `giv[e] the first [derivative work] creator a considerable power to interfere with the creation of subsequent derivative works from the same underlying work.” Id. (quoting Gracen, 698 F.2d at 305).