Author: Juliana Tutt
In Torres-Negrón v. J & N Records, L.L.C., the court determined two issues: whether the plaintiff’s submission of a tape recording of himself singing his song and clapping its rhythm by memory, without reference to his original work, met the deposit copy requirement of 17 U.S.C. § 408(b); and whether the failure to submit a deposit copy is a jurisdictional defect in a federal copyright infringement case.
Plaintiff Fernando Torres-Negrón applied for and obtained a certificate of copyright registration for a song he wrote, then sued defendant J & N Records Distributor for copyright infringement after they distributed the song on multiple CDs without his permission. After a jury verdict for Torres, the United States District Court for the District of Puerto Rico dismissed the case for lack of federal subject matter jurisdiction. The First Circuit affirmed. Although there was a question of whether the song was an unauthorized derivative work, the court did not decide the merits of the case, instead finding that Torres’s copyright registration was incomplete because he submitted only a reconstruction instead of the requisite deposit copy of 17 U.S.C. § 408(b). The court denied federal subject matter jurisdiction because this defect in Torres’s application rendered his copyright registration invalid.
The court construed Congress’s use of the word “copy” in 17 U.S.C. § 408(b) narrowly, differentiating bona fide copies from mere reconstructions. The court relied on dictionary definitions as well as on a Ninth Circuit decision and a Sixth Circuit decision to conclude that a copy is a reproduction necessarily made from and with reference to the original work. A reconstruction, on the other hand, is created without the original work. This distinction is supported by the Sixth Circuit’s reasoning that a strict definition of “copy” might encourage prompt copyright registration and help prevent fraudulent claims to already-successful works. Once the court decided to distinguish copies from reconstructions, Torres’s tape recording—which was made without access to the original tape he gave away eight years before—fell into the latter category.
The court further ruled that the failure to submit a bona fide copy is a serious defect that renders a copyright registration invalid, instead of an immaterial mistake that would not result in an invalid registration, such as the failure to list all co-authors or small discrepancies between the original work and its copy. Furthermore, although there is federal subject matter jurisdiction where a valid copyright application has been rejected, there is no federal subject matter jurisdiction without a valid copyright application. 17 U.S.C. § 411(a). The court explained that the purpose of copyright registration is to obtain the Copyright Office’s expert evaluation of a copyright claim before engaging in litigation. This purpose is not served when the Copyright Office is presented with inaccurate information in the form of an incomplete, fraudulent, or materially erroneous application. Unlike in cases where the Copyright Office rejects an accurate and valid application, courts are unable to defer to the Copyright Office’s expertise when its decision might have been different but for an application’s defects. Therefore the submission of a true deposit copy is a necessary step in obtaining federal subject matter jurisdiction.