How Much Is an Album Worth?: The Seventh Circuit’s Approach to Defining One Statutory “Work” Under the Copyright Act of 1976

On August 21, 2019, in Sullivan v. Flora, the U.S. Court of Appeals for the Seventh Circuit adopted the Independent Economic Value Test (IEV Test) to ascertain whether the constituent elements of a copyrighted material were multiple “individual works” or a “compilation” for purposes of statutory damages. In practice, this means that copyright owners, particularly in the music industry, can obtain significantly larger damages by permitting individual awards for each song within an album. The Seventh Circuit, in adopting the IEV Test, joined a growing list of federal circuit courts that rejected the U.S. Court of Appeals for the Second Circuit’s more limited issuance test, which evaluates the group nature of the copyrighted material as promulgated by the copyright holder. This Comment argues that the IEV Test adopted in Sullivan is the better of the two approaches because it respects Congress’s intent to allow for an objective and particularized analysis of the constituent elements of large collections of copyrighted material. Furthermore, it argues that the IEV Test could be further enhanced with structured jury instructions and the addition of a Fifth Amendment constitutional due process defense that defendants can assert when the aggregate award of statutory damages is excessive.