COPYRIGHT ACT (REVISIONS) WELCOME: THE LAX COPYRIGHT IN LIVE PERFORMANCE'S LAST WRIT.

• Author: Mowad, Lidia

Contents INTRODUCTION I. THE PROBLEM WITH FIXATION, THE RIGHTS AT PLAY, AND THE LINE THAT CONCERTGOERS JUMP A. The Fixation Problem with Live Performances B. The Historical Hierarchy C. Modern U.S. Rights' Live Performances & Their Failures 1. The Performers' Rights 2. The Disincentivized Performer and Why Performer Substitutes Fail 3. The Video-Recorders' Rights 4. The Ill-Equipped Video-Recorder D. The Rights Playbill and How Performers Have Gone Off Script E. The Shame in the Game--Economic Harms II. TECHNOLOGY, POLICY, AND CULTURE A. Technological Solution B. Legislative Solution C. Cultural Solution CONCLUSION INTRODUCTION

On March 20, 1897, a grand dinner was held at New York's famed Delmonico's restaurant ... celebrating the final copyright revision of the nineteenth century--passage of the Cummings Copyright Bill, by which the owners of "dramatic" and "musical" compositions were granted the exclusive right of "public performance." (2) Countless retellings herald this occasion as a hallmark of copyright protection for live performances. But what few observe is that while this celebratory dinner marked a great advance in the protection of the underlying compositions of live performance, the bill also enshrined a blatant misunderstanding of the protection of the actual live performance that would persist through the centuries. (3)

The Cummings Copyright Bill (4) was admittedly limited in establishing the right of protection of musical compositions in dramatic works, but it also preserved the idea that only composers and writers should receive the protection of a copyright in their live performance, not the performers of the works. While courts eventually recognized that copyright similarly affords protection to producers and sound technicians, the idea that copyright protects only written or tangible works has persisted.

United States copyright law enshrined this preference for written works in the requirement of fixation for copyright protection. While fixation seems an instinctively obvious requirement for legal protection, fixation poses a challenge for live performances. Here, live, public performance means actual performances--live concerts and comedy acts. These are properly categorized, when recorded, as "performing arts works" under United States copyright law. (5) Largely improvisational performances are by definition "unfixed." The problem that this Note seeks to address is that the "unfixed" nature of live concerts and improvisational works encourages many concertgoers to "fix" the performance as videos on their cellphones and quickly send it to all of their friends or post on the Internet. Today, streaming and distribution occur quickly over low--or no-cost smartphone applications. (6) These apps allow users to film increasingly high-quality audiovisual recordings of a performance and make them available for mass consumption to entire virtual communities, depending on the social networking site. (7) Often referred to as "flash infringement" due to its ephemeral nature, this trend of unauthorized recording confounds the protections currently set forth in the Copyright Act. (8) Copyright law fails to protect these live, public performances because neither the performer nor the authorized video-recorder of the concert has the incentive or capacity to prevent the recording, reproduction, or distribution made by concertgoers.

Once again, the current state of artistry in the law is faced with "a fundamental clash over culture, policy, and copyright law." (9) In order to resolve this conflict, this Note proposes that protection should be afforded to the performers in the reproduction and distribution of the unauthorized fixation of their live concerts. In Part I, this Note will address the rights that performers have in their live performance, the rights that the authorized video-recording crew has in the live performance, and the legal hole left agape for concertgoers to exploit. Part II will discuss possible resolutions to this dilemma by first addressing a recent technological response which could solve the bootlegging crisis; then by analyzing international treaties such as the Trade-Related Aspects of Intellectual Property Rights Agreement ("TRIPS Agreement"), the World Intellectual Property Organization Performances and Phonograms Treaty ("WPPT"), and the Beijing Treaty on Audiovisual Performances (Beijing Treaty); and last, by addressing possible cultural solutions. Part III concludes with a recommendation, to add audiovisual protection as the next protected subject matter under the Digital Millennium Copyright Act ("DMCA"), or, more likely, for artists to embrace emerging technology to resolve this recording problem.

1. THE PROBLEM WITH FIXATION, THE RIGHTS AT PLAY, AND THE LINE THAT CONCERTGOERS JUMP

   1. The Fixation Problem with Live Performances

      The music industry, and artists in particular, are characterized by pride. Not so much in the lengths they have to go to for their artistry--subsisting on Ramen Noodles in New York City or playing on street corners, begging for some acknowledgement of their existence--but in the respect that once they have created something of recognizable value, they are ruthless in defending their rights. While inherent to all artists, this pride is further encouraged by the structure of the lack of legal protection in their live performance works.

      The Intellectual Property Clause of the Constitution empowers Congress to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (10) Congress and the lower courts have strictly construed this text when interpreting the protection extended to musical works. The constitutional policy underlying copyright protection is to balance granting "a fair return for an 'author's' creative labor" and "stimulating] artistic creativity for the general public good." (11) In effect, "[t]he monopoly created by copyright ... rewards the individual author in order to benefit the public" by giving access to the public in order to inspire the public's creativity and creation. (12)

      It was with this balance in mind that copyright protection was developed. Copyright law provides protection for original works of authorship by bestowing certain exclusive rights upon their creators. (13) When it comes to live performances, though, that balance has yet to be secured. This failure emanates from a fundamental misunderstanding of a musical work. "The origins of music copyright law are rooted in a particular, restrictive notion of the musical work ... and its fixation in graphic form (the musical score)." (14) Thus, Johann Sebastian Bach and the scores for his Brandenburg concerti, from the outset, were "valori[z]ed" over the performers actually creating the music. (15) The underlying musical composition or dramatic work may be registered as a work of the performing arts; however, only the written composition is granted protection. (16) Note the important distinction between the exclusive right to perform the copyrighted work under the exclusive rights granted in section 106 for this underlying work and a copyright in a live performance itself--not a subject matter of copyright. (17) As a result, copyright does not properly cater to the unwritten jazz riffs of Thelonious Monk or other forms of improvisational arts. The rationale for this distinction follows from the requirements to obtain a copyright. Copyright protection arises automatically so long as a work of authorship meets three broad criteria: the work must be original, consist of expression, and be fixed in some tangible form. (18) This last criterion, tangibility of form, is the sticking point for live performers because their performances are not properly "fixed."

      Fixation requires that a work be "fixed in a[] tangible medium of expression." (19) "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." (20) Two types of fixation are described by section 101: "copies" and "phonorecords." "'Phonorecords' are material objects" containing "sounds, other than those accompanying a motion picture or other audiovisual work," while "'[c]opies' are material objects[] other than phonorecords." (21) Further, the statute encompasses simultaneous broadcasting by defining "[a] work consisting of sounds, images, or both, that are being transmitted, [a]s 'fixed' ... if a fixation of the work is being made simultaneously with its transmission." (22) If no authorized recording is done, then certainly anyone who records the concert will have a potentially copyrightable fixation, albeit perhaps unauthorized.

      Live performances are considered unfixed because they are transitory. The live performance of a comedy show or live concert is "a series of human-generated acts and sounds ... leaving no trace of its existence" except in your bank account, through purchased memorabilia, and in your memory. (23) The possibility of registration for protection of a live performance exists only upon fixation--be it audio or audiovisual. As I will discuss in greater length in Section I.C, artists may authorize a production company to audio record their live performance. That recording can be sold to devoted fans in the form of live CDs. (24) Because of the artist's authorization, that sound recording is the fixation which holds a copyright and provides the owner with exclusive rights under section 114 of the Copyright Act. (25) Any other audio recording of that performance by an audience member is unauthorized and thus an infringing work. Accordingly, the copyright owner may bring suit against the person who created that unauthorized recording for infringement of the...