Re: "Fixation" question

On 7/10/98, Carl Oppedahl <carl[_at_]oppedahl.com> wrote:
>
> On 7/9/98, Roger Cloud <roger_cloud[_at_]emu.com> wrote:
> >
> > A singer sings a brief but somewhat distinctive phrase (e.g., a yodel -
> > not wildly distinctive, and the person isn't famous, although he works
> > in the trade). A recording engineer hits the "record" button.
> >
> > Does anyone know what specific authority/precedent there is on who has
> > "fixed," i.e., "originated" the sound recording, absent (or ignoring
> > whether there are) any other facts (such as release, assignment)?
>
> If the recorder is going, then it is fixed in a tangible medium. The
> statute does not recite any requirement as to who, exactly, pressed the
> "record" button.
>
> The owner of the copyright is, of course, the author, regardless of the
> identity of the person who happened to press the "record" button.
>

Let me offer a slight emendation to Carl's statement.

Under normal copyright law, as contained in 17 USC 101, a work is not fixed unless the fixation is made "by or under the authority of the author." So an extemporaneous work that is recorded without the knowledge or permission of the author is *not* fixed and therefore not copyrighted.

Carl is presumably talking about section 1101 of the copyright act, which was added in the mid-1990s. Section 1101 provides that even though there is no copyright in such a work, fixing or "trafficking" in unauthorized recordings of live musical performances is illegal.

Mark A. Lemley
Professor of Law, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu
Note CHANGED office phone: 512/232-1342

Information on UT's Intellectual Property program: http://www.utexas.edu/law/acadaff/intelprop/

My publications list: http://www.law.utexas.edu/lemley/pubs.htm Received on Mon Jul 13 1998 - 14:34:21 GMT