Spiraling Derivatives

Early last year, there was a fascinating decision out of the District of New Jersey answering the question of whether reselling an exact duplicate of a book, but with a different binding, constituted an unauthorized derivative in violation of §106(2) of the Copyright Act. For years, plaintiff Steeplechase Arts & Productions, LLC had been selling its very popular “Piano Book for Adult Beginners: Teach Yourself How to Play Famous Piano Songs, Read Music, Theory & Technique.” With almost 7500 reviews on Amazon, culminating in a 4.5-star rating, and favorable coverage in national media, this volume was certainly among Plaintiff’s crown jewels.

However, defendant Wisdom Paths, Inc., d/b/a Spiralverse, had an idea of how to improve it: replace the glued spine with a spiral binding, allowing the book to open flat on a piano’s ***music stand***. The Defendant purchased hundreds of copies of the Plaintiff’s book, replaced the bindings, and resold it; some of its copies contained a label on the front cover stating, “The original binding was removed and replaced with a spiral binding by Spiralverse.com.” Plaintiff sued for copyright infringement and unfair competition.

With respect to the copyright claim, because Spiralverse had not made any copies, but resold the exact volumes it had purchased from Plaintiff, there was no unauthorized duplication or distribution; Spiralverse’s resale of the books could thus be protected under §109 of the Copyright Act, the First Sale Doctrine. The only change to the books was the binding. Therefore, Steeplechase asserted that Defendant’s spiral binding constituted an unauthorized derivative work.

The definition of “derivative work” is “a work based upon one or more preexisting works . . . in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship.” Because the replacement of the binding did not result in “an original work of authorship,” Defendant argued, this was not a derivative work. Plaintiff countered that because Spiralverse’s book was based upon a preexisting work, it was derivative. In short, the adverse parties disputed whether the second sentence of the definition narrowed the scope of the first sentence (i.e., only if the derivative constitutes an original work) or clarified the scope of the first sentence (i.e., any recasting constitutes an original work).

The court cut through the imbroglio of relating the two sentences of the “derivative works” definition—a question which still divides circuit courts. Instead, the court found that installing a spiral binding on a book does not “recast,” “transform,” or “adapt” an underlying work according to the respective Merriam-Webster definitions. Therefore, this was not a derivative work and summary judgment was granted to Spiralverse on the copyright claim.