Re: Do we now have a limited perf. right in sound recordings?

>Eugene Volokh writes:
>>
>> Let's say that after the Act's effective date a radio station
>>plays some artist's live album. The album was legitimately
>>recorded; the radio station legitimately bought it; and the station
>>has an ASCAP or BMI license for performing the compositions.
>>
>> The copyright owner in the sound recording sues, claiming that
>>the performance of the sound recording was "transmit[ting] or
>>otherwise communicat[ing] to the public the sounds . . . of a live
>>musical performance." Sec. 1101(a)(2). Does the sound recording
>>owner win? Or will a court limit this language to contemporaneous
>>transmissions, or transmissions of unauthorized fixations?
>
>*************
>
>Definitely the latter. The statute says you can't transmit (or
>record yourself) a "live musical performance." There is no
>prohibition against transmitting a sound recording, which is what
>the radio station is doing here. Absent clear legislative intent,
>I can't imagine a court would read the language otherwise.
>
>
>Mark Lemley
>Assistant Professor
>University of Texas School of Law
>mlemley[_at_]mail.law.utexas.edu

The language Prof. Volokh quotes above, if read literally, seems to only prohibit the direct, *contemporaneous* broadcast of a concert. Clearly, simulcasting performances was not the issue that the legislature was concerned about, though. Rather, it is trafficking in "bootleg" reproductions (fixations) of those "live" recordings long after the concert is over that is the problem. Agreed that that is the intent of the legislature, and that prohibiting transmissions of both unauthorized fixations/recordings and contemporaneous broadcasts would be the most accurate judicial interpretation.

However, given the real world plaintiff's bar and the endless search for a performance right, mightn't plaintiffs decide to at least argue that they have been infringed upon by any and all broadcasts of their work as every recording was originally "live"? Perhaps the distinction between "live" and non-live (dead?) recordings is the presence of an audience and/or the use of prerecorded tracks in the studio in synch with subsets of the live performers to create the final version. I do not see such a distinction anywhere in the legislation, however. Maybe it's moot because no court would allow such an interpretation, but it seems like sloppy drafting for such an important piece of legislation, no?

scott fedewa
<fedewacs[_at_]leland.stanford.edu> Received on Sun Dec 18 1994 - 20:39:14 GMT