Understanding (and Fixing) the Right of Fixation in Copyright Law

Abstract

In 1994, the United States established laws prohibiting the making and distribution of “bootleg” recordings of live music concerts. While strongly criticized by many commentators, these provisions establishing a “right of fixation” for musicians have been upheld against repeated constitutional challenges.

This article proposes a new constitutional analysis of the anti-bootleg provisions, different from any provided to date by courts or commentators. In this analysis, some components of the anti-bootleg provisions should be treated as copyright law while other provisions are clearly outside the scope of the Copyright Clause, requiring another basis for Congressional action. The provisions that fall squarely within the Copyright Clause must – contrary to the courts – be amended to restrict protection to “Limited Times” and with copyright’s core exceptions and limitations. As to the other provisions -- the true prohibitions on fixation -- this article proposes that instead of the jejune Commerce Clause versus Copyright Clause debate we should look to the Necessary and Proper Clause as the best basis for Congressional power.

Reconsideration of these issues is highly relevant because the 2012 completion of the Beijing Treaty on Audiovisual Performances means that the United States should now extend the same "right of fixation" protection to dramatic and choreographic performers. This article shows how this can be done with minimal amendment of the law, producing a balanced, improved set of anti-bootleg provisions.