Re: "Fixation" question

On 7/14/98, Mark A. Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> 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.

OK, let me add a twist I also probably should have originally volunteered. Let's presume (1) the person who organized the session and initiated the recording, and (2) the artist, each wants to consider him/herself the author of the sound recording, per se. Without prior agreement as to authorship of the sound recording, what result?

Roger Cloud
<roger_cloud[_at_]emu.com> Received on Tue Jul 14 1998 - 16:11:08 GMT