Protecting Live Performances: Ownership of Unauthorized Concert Recordings
“Can we just remember this with our eyes and ears, and with each other?”1
Florence Welch, the leading lady of Florence and the Machine, asked a crowd of 25,000 at her Camden performance if they could refrain from taking photos or videos during one song.2
Performances that are recorded on smartphones usually end up circulating the Internet. The question of whether a songwriter or artist can raise a copyright infringement claim when concert attendees upload unauthorized concert recordings on websites and web-based applications remains unanswered.
The Copyright Act of 1976 governs U.S. copyright law.3 The U.S. Constitution explicitly states that Congress has the power to create copyright law under the Copyright Clause.4 Currently, the unauthorized recording of a live performance—third party, user-generated content that is uploaded onto sites like YouTube, or apps like Periscope—is currently a gray area in the legal realm because the Copyright Act does not acknowledge unauthorized footage of live music performances.5 It remains unclear whether a recording of a live action in a public setting constitutes copyright infringement.6
The two essential elements in determining the existence of a copyrighted material are: (1) a work of authorship (2) that is fixed in a tangible medium of expression.7 The courts have had difficulty in determining whether an unauthorized concert recording is a tangible copyrightable category.8 Dramatic works (including theatrical performances with accompanying music) and even some choreographic works are categories that are recognized by the Copyright Act.9 However, a live concert performance is not explicitly protected under copyright law.10 Thus, there is a concerning loophole regarding this particular type of recording.
Congress attempted to alleviate this issue by enacting both civil and criminal “anti-bootlegging” statutes in 1994.11 These statutes were enacted before the digital era, initially to combat the issue of live performance recordings being replicated and sold as CDs.12 Although there is not much legislative history with respect to the passage of the statute, Congress intended to enact the statute under the Copyright Clause, incorporating the statutory remedies for copyright infringement.13 However, a jurisdictional split remains when discussing the constitutionality of the statute under the Copyright Clause.14
In 2005, the band members of KISS filed a lawsuit against a production company that illegally distributed concert footage.15 The California District Court found that the anti-bootlegging statute was constitutional under Congress’s Commerce Clause jurisdiction, and was not in conflict with the Copyright Clause.16 The Court cited the 1999 appellate decision in United States v. Moghadam, stating that although the modern era allows Congress to extend the term “writings” in copyright protection to many things, those things have to be “fixed” and “tangible” in form.17 Additionally, the California Court referred to Professor Melville B. Nimmer’s treatise, which explains:
“[i]f the word “writings” is to be given any meaning whatsoever, it must, at the very least, denote ‘some material form, capable of identification and having a more or less permanent endurance … [a] live, but not transmitted, performance is not entitled to statutory protection.’”18
Nonetheless, the Kiss Court agreed that the statute is well within Congress’s Commerce Clause powers.19 The Court asserted that there is no “fundamental conflict” with the Copyright Clause because the statute addresses the non-consensual recording of a live performance, which is conduct that is not protected by the Copyright Clause.20
The New York District Court in United States v. Martignon, held that Congress lacked the power to create the criminal statute (the civil statute’s sister provision) under either the Copyright or Commerce Clauses and addressed the gap in copyright protection.21 The Martignon Court disagreed with the holding in Moghadam, noting that interpreting the statute to regulate live musical performances is beyond the scope of the Copyright Clause’s definition of “writings”.22 According to them, the performances are unfixed at the time they are recorded.23 Additionally, Martignon denied the constitutionality of the statute under the Commerce Clause, confronting that the statute’s description lacks any discussion of commerce and it is expressly to protect performers.24 This appellate decision displays the differing court opinions on how the statute should be interpreted, and why the statute does not fall under the Copyright Act in the aforementioned jurisdictions that have heard cases similar to your situation. These cases indicate that raising a copyright infringement claim under the anti-bootlegging statute will probably be a battle of its own in court. However, depending on the jurisdiction that you are in, the court may allow a claim under the Commerce Clause, as seen in the decisions of the 2nd Circuit and the California District Court. Ultimately, there is limited case law affiliated with live performances and the anti-bootlegging statutes.
It is evident that it is difficult to determine where to draw the line when interpreting the Copyright Act and the affiliated anti-bootlegging statute, especially when discussing issues that have recently come to prominence with the emergence of digital platforms. It is also hard to predict how some courts might react. While there are some forms of protection available (as noted above), Federal Copyright Protection is arguably the highest form of protection for a person’s expression of an idea.25 The fixation requirement under the Act is an extreme obstacle that Congress needs to address and solve.26
There is also a misperception amongst the public that musicians make a hefty amount from their live performances.27 However, there are factors to consider, including expenses associated with touring.28 Hundreds of unauthorized concert uploads can deter the public from purchasing concert tickets, and generate large revenues for websites and web applications that turn a blind eye to such questionable user-generated content. It is unfortunate that Congress has not already taken considerable steps in adapting to digital advancements.
See http://harvardjsel.com/wp-content/uploads/2016/04/HLS101.pdf [https://perma.cc/V4WB-PH5B]; see also http://www.pcworld.com/article/2912272/live-streaming-apps-pose-legal-risks-for-users.html [https://perma.cc/YWM9-8GSS].↩
See 17 USC §1101; see also 18 USC §2319.↩
See USC §1101(a); see also United States v. Moghadam, 175 F.3d 1269, 1272 (1999) (“[W]hat little legislative history exists tends to suggest that Congress viewed the anti-bootlegging provisions as enacted pursuant to its Copyright clause authority.”), citing 140 Cong. Rec. H11441, H11457 (statement of Rep. Hughes).↩
See Kiss Catalog, Ltd. V. Passport Int’l Prods., 405 F. Supp. 2d 1169 (2005).↩
See id. at 1171.↩
See Melville B. Nimmer, 1 Nimmer on Copyright §1.08(c)(2).↩
See Kiss Catalog, Ltd. V. Passport Int’l Prods., 405 F. Supp. 2d at 1171 (citing Gonzales v. Raich and United States v. Lopez).↩
See United States v. Martignon, 346 F. Supp. 2d 413, 418 (2004).↩
See id. at 423.↩
Eventually, the 2nd Circuit Court of Appeals vacated and remanded the District Court’s decision in 2007, holding that the anti-bootlegging statute was not enacted under the Copyright Clause and validly enacted under the Commerce Clause (with no subsequent appellate history available for this case).[footnote]See United States v. Martignon, 492 F.3d 140 (2007).↩
See id. at 20.↩