The U.S. Court of Appeals for the First Circuit held that a plaintiff’s “reconstruction” of a song, made eight years after the song was created and without reference to the original song, did not meet the requirements of the Copyright Act for a deposit “copy” for purposes of obtaining a valid copyright registration. The First Circuit affirmed the district court’s conclusion that it lacked subject matter jurisdiction over the case because the plaintiff did not have a valid copyright registration, which is a prerequisite for filing a copyright infringement suit in federal court.
In 1993, plaintiff Fernando Torres-Negron wrote several songs that were later recorded by the band Gozadera and sold by the defendant J & N Records. Torres-Negron had given the original of the lyric sheet and the audio tape that he recorded of the song to the band, and he did not retain copies of either. He received some royalties on the band’s first record, but did not receive royalties when the recording of his song was included on several subsequent records. After learning about these subsequent recordings, he submitted an application for registration of his copyright to the Copyright Office and received a certificate of copyright in 2002. With the application, Torres-Negron submitted a typed version of the lyrics and a cassette tape he had created in 2001 on which he had recorded himself singing the song and clapping the rhythm.
Torres-Negron filed suit for copyright infringement against the defendant record company and a jury returned a verdict in his favor. However, the district court granted the defendants’ motion for judgment as a matter of law because Torres-Negron did not have a valid copyright registration. The district court explained that “a copy that is simply created or reconstructed from memory without directly referring to the original, known as a reconstruction, does not comply with the deposit requirements of the Copyright Act.”
The First Circuit affirmed. The appeals court wrote that the lyrics and tape that the plaintiff submitted with his copyright application were not the originals, “that is, they were not the exact tape or piece of paper on which he first recorded the music or wrote the lyrics of the song.” The plaintiff admitted that he gave the original lyrics and the first recording of the song to his friend who later recorded it with his band. By the time the plaintiff submitted his copyright application eight years later, he no longer had access to either the original lyrics or the tape recording of the song, so he made a “reconstruction” of the song based on his memory. The question before the court was whether a reconstruction qualifies as a copy for purposes of registration under the Copyright Act. Relying on case law in other circuits, the court concluded that a reconstruction created from memory, without access to the original work, does not serve as a copy for registration purposes. The court stated that “[I]n light of the plain statutory language and the purpose of the registration requirement, we conclude that omission of a proper deposit copy with a copyright application renders the registration invalid and eliminates the federal courts’ subject matter jurisdiction over an infringement claim.” In doing so, the court rejected the plaintiff’s argument that submitting a reconstruction as the deposit copy was an immaterial error.