Re: "Fixation" question

Roger Cloud <roger_cloud[_at_]emu.com> wrote:
>
> 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?

According to HR 94-1476, at p. 56, ordinarily both the producer and the performers will be "authors" of the sound recording (although I doubt that "organizing" a session or "initiating" the recording (meaning presumably financing it, suggesting that it occur, or even turning on the tape recorder) amounts to authorship (in other words, the record producer is an "author" if she makes creative decisions in transferring the sounds made by the performers to tape--e.g., sound processing, equalization, stereo placement, etc.) See,eg, the George Thorogood case. In the absence of work for hire or other contractual arrangements, they would be coauthors, per the House Report

Prof. Jay Dougherty
Loyola Law School
fjdoughe[_at_]lmulaw.lmu.edu
213-736-1461. Received on Wed Jul 15 1998 - 22:38:38 GMT