Re: Music overdubbing for broadcast

From: <ArborLaw[_at_]>
Date: Fri, 13 Sep 1996 19:03:25 -0400

A Lewine asks:
> What about an unauthorized derivative work?

(I had said I thought that dubbing another group's sound over the soundtrack of a video of a famous group performing the same song was probably grounds for legal claims in the group under "false light" and s. 43(a) Lanham Act).

Well, this gets us into a myriad of followup questions:

Derivative of which work and who owns it? We're talking about the copyright in the recording of the performance, not in the song. The video was made by whomever "fixed" it in tangible form, who would presumably own the copyright on the performance unless some fact situation like a transfer agreement provides to the contrary. So under those assumptions, I guess there might be an unauthorized derivative if the copyright holder for the original video footage didn't authorize the production house to make a substitution.

But I suppose this raises one of those interesting theoretical issues about common law copyright in things (like performances, which come within the subject matter of copyright) prior to their fixation in a tangible medium. As far as I know, common law protection for unfixed material (as for example a speech or a dance that has never been written down or recorded) is not preempted by US federal copyright, until the fixation acutally happens.

But I really think the gravamen of the harm in this case is "you're making me look not as good as I really am," which is a misrepresentation or false light tort.

Carol Shepherd

   Carol Ruth Shepherd                          arborlaw[_at_]
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==--====-==-=-=-==--=--====--=-=-=-====---===-=-=-====---===---= Received on Fri Sep 13 1996 - 23:04:22 GMT

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