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11 Cardozo Pub. L. Pol'y & Ethics J. 385 (2012-2013)
Closing a Loophole in Musicians' Rights: Why Digital Remasters of Analog Sound Recordings Are Not Derivative Works Protected by the Copyright Act

handle is hein.journals/cardplp11 and id is 419 raw text is: CLOSING A LOOPHOLE IN MUSICIANS' RIGHTS: WHY DIGITAL REMASTERS OF ANALOG SOUND RECORDINGS ARE NOT DERIVATIVE WORKS PROTECTED BY THE COPYRIGHT ACT Jon Peritz* INTRODUCTION .............................................. 386 I. THE BACKDROP OF THE DEBATE ...................... 388 A. The Value and Protection of Master Recordings ....... 390 B. D igital Remasters .................................. 391 C. Termination Rights ................................ 392 D. The Issue of Works Made for Hire .................. 393 II. WHEN IS A DERIVATIVE WORK PROTECTED UNDER C OPYRIGHT? ......................................... 400 A. Tests of Substantial and Distinguishable Variation .... 401 B. Protection of a Derivative Work Must Not Affect the Scope of Protection in the Underlying Work .......... 406 C. Variation for Functional Considerations, Translations to a New Medium, Artistic Skill and Hard Work do not Constitute Substantial or Non- Trivial Variation .. 409 1. Variations from the Underlying Work Made for Functional Considerations .................... 409 2. Works Created by Translating an Underlying Work Into a New Medium ................... 410 3. Artistic Skill and Hard Work Do Not, In and of Themselves, Constitute Sufficient Originality to Warrant Protection ........................ 410 III. APPLICATION OF DERIVATIVE WORKS STANDARDS TO DIGITALLY REMASTERED SOUND RECORDINGS ......... 412 A. Digitally Remastered Sound Recordings Do Not Vary Substantially or Distinguishably from the Underlying W ork ............................................. 4 12 Jon Peritz is a candidate for Juris Doctor at the Benjamin N. Cardozo School of Law (May, 2013). Special thanks to Professors Justin Hughes and Brett Frischmann for their invalua- ble input on this project and for teaching me about copyright law. Thanks also to my law school colleagues whose encouragement was essential to getting this Note published. Thanks to the editorial board and staffers of the Cardozo Public Law, Policy, and Ethics Journal for their diligence and assistance. Finally, and most importantly, thanks to my incredible family and friends for their unflagging support and love, without which I would not be who I am today.

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