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Bootleg Recordings and Fair Use
A few months ago, Bruce Springsteen made headlines by
performing a new song he had written concerning the tragic
shooting of unarmed immigrant Amadou Diallo by New York City
police officers. Journalists around the country ran serious
commentary about the song in print, broadcast and on-line
media. Some of the print coverage included extensive quotation
from the lyrics of the song, the meaning of which was hotly
debated, and some of the TV, radio and Web coverage also
included audio clips of Springsteen performing the song. The
only available audio was from concert performances, as the Boss
had not yet released the song on record.
Some news organizations no doubt secured permission to print
the lyrics and use the audio clips, and some no doubt relied on
their fair use rights under § 107 of the Copyright Act. Given
the subtleties of the song's lyrics and its role in the ongoing
public debate about important issues of racism and police
tactics, a strong fair use argument could be made on behalf of
unauthorized journalistic use, even of large portions of the
song.
As to the audio clips, however, the fair use defense is
probably statutorily unavailable. If an audio clip, i.e., a
bootleg concert recording, was made without Springsteen's
consent, the creator's rights do not arise under § 106 of the
Copyright Act. Instead, the recording would be a violation of §
1101, a 1994 amendment which prohibits the unauthorized
fixation or distribution of "the sounds or sounds and images of
a live musical performance." Violators of this section are not
copyright infringers, because the live musical performances
they exploit are technically unfixed and thus not
copyrightable. Even if an authorized recording is made of the
same concert, it is only the recording, not the performance
itself, which is copyrightable, and the bootleg, as an
"independent fixation" under § 114, arguably does not infringe
the authorized recording. The statute therefore provides that
violators of §1101 shall be subject to the remedies of the
Copyright Act "to the same extent as an infringer of
copyright," tacitly recognizing that bootleg concert recordings
are not infringements of § 106.
The distinction between a violation of traditional § 106 rights
and the rights created by § 1101 may seem trivial, but it could
become important in the Springsteen scenario because fair use
under § 107, which would ordinarily be invoked to shield
journalistic uses of copyrighted material, does not apply to
rights created by § 1101. Rather, § 107 only serves as a
limitation on the author's exclusive rights under § 106
("Notwithstanding the provisions of §§ 106 and 106A, the fair
use of a copyrighted work . . . is not an infringement of
copyright.") 1
Accordingly, a radio, TV or Web service which ran a bootleg
concert clip of Springsteen singing his controversial song
could not assert the fair use defense with respect to the
recording, no matter how lofty the journalistic purpose.2
Moreover, the § 1101 right does not expire, unlike a copyright,
so there will never be any basis under the Copyright Act for
making unauthorized use of the recordings.
The Boss' hypothetical ability to suppress illegal concert
tapes under the Copyright Act would probably not be unlimited,
however, because even if the Act itself provides no statutory
safety valve, a legitimate journalistic use should still be
permissible under the First Amendment. In the copyright context
the courts often remark that "the fair use doctrine encompasses
all claims of first amendment [privilege]," Twin Peaks Prods.,
Inc. v. Publications Int'l, Ltd., 996 F.2d 1366, 1378 (2d Cir.
1993), but because fair use is not technically available for
§1101 violations, a court faced with the issue would probably
conclude that some similar latitude was warranted in
appropriate cases, simply to avoid construing a constitutional
infirmity into the statute.
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1 A similar statutory analysis was performed by the Supreme
Court recently in Quality King Distrib., Inc. v. L'Anza
Research Int'l, 118 S. Ct. 1125 (1998), with the result that
the exclusive importation right under § 602 was held subject to
the first sale defense under § 109 (which also begins
"notwithstanding § 106 . . . "), but only because § 602 was
expressly tied to the § 106 distribution right ("importation. .
. is an infringement of the exclusive right to distribute
copies or phonorecords under § 106"). Because §1101 is
emphatically not a species of any right under § 106, however,
the logic of Quality King would suggest that no defense from
Chapter 1 of the Copyright Act, including fair use and first
sale, is available for violators of § 1101.
2 As to the underlying musical composition being performed, the
fair use defense would presumably be available, but if the
broadcast was made from a pirate copy it would be very
difficult for the defendant to prevail. See Harper & Row v.
Nation Enterprises, 471 U.S. 539 (1988).
© 2000 Cowan, Liebowitz & Latman, P.C.
Disclaimer:
This the information provided in this article should not be
construed as legal advice or legal opinion on any specific
facts or circumstances. The contents are intended for general
information purposes only, and you are urged to consult with a
lawyer concerning your own situation and any specific legal
questions you may have.
by Robert W. Clarida - December 2000
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