Bootleg Recordings and Fair Use

by Robert W. Clarida

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.

---

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.