Citizen Media Law Project assistant director Sam Bayard follows up on the "Prince/Radiohead/YouTube flap," raising some additional questions and asking, "Copyright geeks and fair readers alike, what do you think?"
All right copyright geeks, it's time to do some more hypothesizing on the Prince/Radiohead/YouTube flap I blogged about in my previous post, Prince, Radiohead, and the Bootlegging Provision of the Copyright Act. Readers posted great comments that merit some elaboration in this post. The idea here is not to provide any sure answers (because I don't have them), but to raise some questions for further discussion. If you are not a copyright lawyer, you'll have to excuse the technical bent; there's just no way to deal with these questions without getting a little esoteric.
To recap, previously I discussed whether the mystery bootlegger who recorded and posted Prince's cover of Radiohead's "Creep" at the Coachella Valley Music & Arts Festival might have violated the anti-bootlegging provision of the Copyright Act, 17 U.S.C. § 1101 and whether sending a DMCA takedown notice was an appropriate legal response. The next day, Eric Goldman of the Technology & Marketing Law Blog, posted the following intriguing comment:
If Prince was simultaneously fixing his Coachella performance (such as through his own taping of the event), then a third party's independent recording of the event should be covered under 106, in which case the notice-and-takedown provisions would be a more appropriate recourse.
This seemed like a plausible argument, but I couldn't get over the question of how someone could infringe a simultaneously fixed recording (hypothetical in this case) without copying or distributing that recording. Recall that Prince doesn't own the rights to the musical composition (Radiohead does). If he has rights in the live performance, they should be limited to any (hypothetical) sound/video recording, right? (To correct one point in my previous post, the bootlegger wouldn't obtain copyrights in his/her direct recording because neither Radiohead nor Prince authorized the recording, so there is no fixation -- see the first sentence of section 106 below.)
Yesterday, the whole issue got more interesting...