RE: Re: Fixation

Oops. Never mind. There you go, pointing the firehose of fact at my carefully built castle in the sand. And here it was I thought that I had a perfectly logical analysis, too bad it was completely unbased on the actual law.

-----Original Message-----
From: Terry Carroll [mailto:carroll[_at_]tjc.com] Sent: Friday, December 12, 2003 4:43 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: Fixation

On Fri, 12 Dec 2003, Agenbroad, James (Civ,ARL/CISD) wrote:

> IANL, but I would interpret this differently. IMHO I don't see
> authorization affecting the fixation of the underlying work.

It very definitely does; it's in the definition of "fixed" in section 101:

    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.

If a performer is improvising a work of authorship, say, on a public sidewalk, and it is recorded by bystander without the performer's authority, it is *not* fixed within the section 101 definition. The work would be an unfixed work of authorship, protected, if at all, under state copyright laws (which are expressly excluded from preemption under section 301(b)(1)).

If the facts are the same, but the performer asks the bystander to record it, then the fixation is under the authority of the author, and is
fixation within the meaning of copyright law.

The interesting questions are what amounts to "under the authority of the
author":

• Performer says "Please record this"? Sure.
• Bystander asks, "Do you mind if I record this?," and the performer says, "sure, go ahead"? Probably (but I suspect bystander would have the copyright in the audiovisual work itself, with the performer having the copyright in the work he created that is now part of the larger audiovisual work).
• Bystander starts recording, and performer says nothing? My guess is that this isn't "authorization" of the performer, and would not amount to fixation in the 101 sense.

-- 
Terry Carroll
Santa Clara, CA
carroll[_at_]tjc.com 


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