RE: Re: Fixation

From: Agenbroad, James (Civ,ARL/CISD) <jagenbro[_at_]arl.army.mil>
Date: Thu, 18 Dec 2003 11:10:15 -0500

Absoutely, IMHO.

-----Original Message-----
From: John Noble [mailto:jnoble[_at_]dgsys.com] Sent: Monday, December 15, 2003 11:38 AM To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: Fixation

Terry, why can't the bystander "author" a recording of the performance without the performer's authority? Think of him as a journalist. He would have a copyright in the recording (which he authored), but not the performance. Maybe it's thin protection against mechanical duplication, but it's a copyright. No?

John Noble

At 4:43 PM -0500 12/12/03, Terry Carroll wrote:
>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.
>

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