ALVIN K. HELLERSTEIN, District Judge.
The motion of defendant Bloomberg L.P. ("Bloomberg") to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) is hereby denied.
On February 8, 2011, The Swatch Group Ltd. ("Swatch Group"),
Swatch Group had engaged Chorus Call S.A., a Swiss company that provides international audio conferencing services, to set up, transmit, and simultaneously record the conference call. Id. ¶¶ 11-12. An operator informed participants at the beginning of the call that the call would be recorded, and she stated expressly that the call should not otherwise be recorded for publication or broadcast. Id. ¶ 13.
Unbeknownst to Swatch Group, and without invitation, authorization, or consent, Bloomberg tapped into the conference call. Id. ¶¶ 21-22. Bloomberg recorded the call in its entirety and, acting again without the knowledge, authorization, or consent of Swatch Group, created a written transcript from the audio recording. Id. ¶¶ 22-23. Later on February 8, 2011, Bloomberg made both its unauthorized audio recording and transcript of the conference call available online to paid subscribers of its "Bloomberg Professional" newsfeed service. Id. ¶ 24.
Swatch Group assigned all right, title, and interest in and to the United States copyright in the authorized audio recording of the conference call to its subsidiary, Management Services. See id. ¶ 16. Less than one week after the call, Management Services filed suit, alleging copyright infringement. Since this suit was filed, the United States Copyright Office has issued a Certificate of Registration for the authorized audio recording of the call,
Bloomberg now moves to dismiss the Second Amended Complaint.
By statute, "[c]opyright protection subsists ... in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a), The "work of authorship"
Because the conference call was "transmitted" live to securities analysts whose participation Swatch Group had invited, and because the call was recorded simultaneously with its transmission, Swatch Group's audio recording of the call satisfies the requirement of fixation. "A work is `fixed' in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Id. When a "work consist[s] of sounds ... that are being transmitted"—that is, when a work consists of sounds that are being "communicate[d] ... by [a] ... process whereby ... sounds are received beyond the place from which they are sent," id. — the work is considered fixed "if a fixation of the work is being made simultaneously with its transmission." Id. This provision "creates a legal fiction that the simultaneous fixation occurs before the transmission" for purposes of an infringement claim. United States v. Moghadam, 175 F.3d 1269, 1280-81 (11th Cir.1999), In other words, the law treats the unauthorized recording of sounds that are transmitted live and recorded simultaneously as an infringement of the copyright in the fixed work (assuming the work otherwise qualifies for protection), notwithstanding that the alleged infringer does not copy the fixed version of the work but rather records the live transmission directly. Id. "It is as if one who was dictating live into a tape recorder were overheard and copied at the moment of dictation. At that moment, the material has become a `writing' even if copied simultaneously, rather than a moment later." 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 1.08[C][2] (Matthew Bender, rev. ed. 2011),
Swatch Group's sound recording also satisfies the requirement of originality to qualify for copyright protection. "Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). Bloomberg does not challenge the independent creation of Swatch Group's audio recording of its senior executives' extemporaneous commentary on the company's health and future prospects. And Swatch Group's audio recording easily satisfies the relatively low bar for creativity, as "even a slight amount will suffice." Id. Indeed, "[t]he vast majority of works make the grade quite easily, as they possess some creative spark." Id.
H.R. Rep. No, 944476 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5669. I need not decide whether the manner in which the conference call was recorded contributes to the sound recording's copyrightability, as there can be no real doubt that the spoken-word contributions of Swatch Group's senior executives possess the requisite creativity to qualify for copyright protection. It is true that Swatch Group's senior executives relied upon unprotected facts and figures in responding to analysts' questions. See Feist, 499 U.S. at 344-45, 111 S.Ct. 1282 ("The most fundamental axiom of copyright law is that `no author may copyright his ideas or the facts he narrates.'" (quoting Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985))). However, the senior executives did not simply recite facts and figures without context or embellishment; rather, there are protectable, creative elements in the senior executives' "manner of expression, [their] analysis or interpretation of events, the way [they] structure[d] [their] material and marshal[ed] facts, [their] choice of words, and the emphasis [they] g[a]ve[ ] to particular developments." Wainwright Sec. Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir.1977), abrogated on other grounds by Salinger v. Colting, 607 F.3d 68 (2d Cir.2010); cf. Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 70-71 (2d Cir. 1999) ("The question, then, is not simply whether [defendant] copied from [plaintiff]'s articles, but whether they copied expression original to [plaintiff]." (emphasis added)). At a more basic level, the senior executives' unique pronunciation of words and their inflection and tone of voice, taken together, constitute "something irreducible, which is one man's alone," and that "he may copyright"—at least in the form of a sound recording.
Swatch Group alleges that Bloomberg recorded the live transmission of the conference call in its entirety and made the unauthorized audio recording available on-line to paid subscribers of its "Bloomberg Professional" newsfeed service. Second Am. Compl. ¶¶ 22, 24. Because Swatch Group fixed the call in a tangible medium of expression simultaneously with its transmission, because Swatch Group's sound recording was independently created, and because Swatch Group's senior executives' spoken-word contributions to the sound recording have the requisite creativity, Management Services has sufficiently pleaded a claim of copyright infringement.
Bloomberg next contends that the copyright infringement claim fails because Management Services has not alleged that Swatch Group fully complied with the prefixation notice requirement of 17 U.S.C. § 411(c). That subsection provides:
17 U.S.C. § 411(c). As a practical matter, because Swatch Group did not invite Bloomberg to participate in the conference call, but rather Bloomberg accessed the call surreptitiously and without authorization or consent, there is no way Swatch Group could have known to serve notice on Bloomberg forty-eight hours before the call was scheduled to take place.
In any event, a noted authority on federal copyright law has suggested that, even where an infringement action is based on a work that consists of sounds that are fixed for the first time simultaneously with their transmission, compliance with the more conventional registration requirement of
2 Nimmer & Nimmer, supra, § 7.16[B][1][b][iii] (footnotes omitted). The United States Copyright Office appears to agree with this assessment. See General Provisions; Works Consisting of Sounds, Images, or Both: Advance Notice of Potential Infringement, 46 Fed.Reg. 28,846, 28,848 (May 29, 1981) (noting that § 411(c) (then codified as § 411(b)) "clearly establishes an alternative procedure to [§ 411(a)] for bringing a suit for copyright infringement").
Bloomberg does not argue that Management Services has not complied with the registration requirement of § 411(a). Indeed, Management Services obtained registration of its copyright claim effective March 2, 2011, before the filing of the Second Amended Complaint. Because Managements Services has complied with the registration requirement of § 411(a), I conclude that compliance with § 411(c) is not necessary and the motion to dismiss is denied.
Finally, Bloomberg contends that it prevails on the basis of "fair use." The Copyright Act provides that "the fair use of a copyrighted work, ... for purposes such as criticism, comment, [or] news reporting[]... is not an infringement of copyright." 17 U.S.C. § 107. "Whether such `fair use' exists involves a case-by-case determination using four non-exclusive, statutorily provided factors in light of
Because I deny Bloomberg's motion to dismiss in full, oral argument, scheduled for August 31, 2011, at 4:00 p.m., is hereby cancelled. The parties shall appear before me for an initial case management conference on September 16, 2011, at 10:00 a.m., in Courtroom 14D, to discuss how they intend to proceed in this matter.
The Clerk shall mark the motion (Doc. No. 16) terminated.
SO ORDERED.