Re: Rights to live performances / fixation

Jonathan D. Taft <jon[_at_]taft.com> writes, in analyzing the definitions of "fixation" and "copy" under the statute:
>
> How can this work? Since "fixation" requires "authority of
> the author", then how can an unauthorized reproduction every be a
> "copy" under the statute, since a "copy" must be "fixed" -- which
> requires "authority". Hence, the code loaded into RAM in the MAI
> case is not a copy, and therefore can not be infringing, since it
> was unauthorized and so not fixed.

I noted the same problem in drafting the "Model Answer" to my essay question in the Copyright course last semester. Here's what I wrote there:

A work is "fixed" when its embodiment in a copy is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. (It also apparently requires that the embodiment be by or under the authority of the author. Such authority has obviously not been given here.  Nevertheless, the absence of authority cannot be a ground for denying fixation in an infringement action by the copyright owner, because then no unauthorized embodiments could ever result in fixations and it would never be possible to infringe the reproduction right of section 106(1).)

Obviously not a very good answer--except that it simply HAS to be right, doesn't it?!

Dennis S. Karjala
Professor of Law
Arizona State University
Tempe, Arizona 85287
602-965-4010
602-965-2427 (fax)
dennis.karjala[_at_]asu.edu
Visit the "Opposing Copyright Extension" web page at <http://www.public.asu.edu/~dkarjala> Received on Fri May 09 1997 - 23:03:24 GMT