In a case of first impression, the U.S. Court of Appeals for the First Circuit joined the Sixth and Ninth Circuits in finding that a reconstruction is not a "copy" for purposes of a copyright application deposit. Torres-Negron v. J & N Records, LLC, Case Nos. 06-2058, 06-2059 (1st Cir., Oct. 2, 2007) (Laffitte, J.).
Plaintiff Fernando Torres-Negron wrote a song and gave his friend the only copy of the lyrics and the tape of Torres-Negron performing the song. Years later, after the friend’s band recorded the song and it appeared on several albums, Torres-Negron registered the song with the U.S. Copyright Office. To fulfill the deposit requirement, Torres-Negron typed out the lyrics and made a new recording of himself performing the song. He then filed suit against J&N. After the jury found for Torres-Negron, the district court granted defendant judgment as a matter of law on the grounds, inter alia, that Torres-Negron’s copyright registration was invalid and thus the court did not have subject matter jurisdiction. Torres-Negron appealed.
The court affirmed, finding that Torres-Negron’s deposit was a "reconstruction," not a copy. The court explained that a reconstruction is created without the original (for example, from memory), while a copy is made from the original. Based on the plain language of 17 U.S.C. § 408, the court held that only a copy may be used to fulfill the deposit requirement for a copyright application. Without a proper deposit, the application was not complete, the resulting registration was void and the court did not have jurisdiction. The court found that deposit of a reconstruction did not fall within the "immaterial mistake" doctrine it established in Data General, because failure to provide a proper deposit would have affected the Copyright Office’s issuance of a registration. The court distinguished this situation from cases in which an incomplete (but genuine) copy or one with minor discrepancies is deposited. In the latter cases, the registration might still be valid but would only cover the material deposited.
The only other circuits to address this issue, the Sixth Circuit in Coles v. Wonder and the Ninth Circuit in Kodadek, have reached the same conclusion.
The First Circuit also discussed the proper procedure for evaluating a challenge to jurisdiction based on the appropriateness of the deposit copy. The court instructed the district court to first determine whether a question had been raised about a deposit that implicates the merits of the case. If not, the district court should weigh the evidence regarding the deposit and determine whether it was an impermissible reconstruction. On the other hand, if the facts related to the challenge are intertwined with the merits of the case, the district court should treat the challenge as a summary judgment motion and resolve it accordingly.
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