Copyright: Questions

Question re Music:

After reading the Mariah Carey case, I am a little confused about the separation of protectible/non-protectible elements of a musical composition. How far may a court (or expert) proceed in separating the elements of a composition in this type of case? Shouldn't the fact that there are only a limited number of notes available in the musical universe play into this evaluation? Also, because of this, isn't it inevitable that certain note compositions, uses and compilations will be re-used over and over throughout time? If the analyzing entity dissects any composition far enough, won't any musical composition infringe on almost any other musical composition, given the limited number of notes available?

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Class 2 Question Regarding today's discussion on Fixation Challenges and Recording of Stand Up Improvisations, would a security camera recording the stand up routine not for the material but for protection be considered a fixation in terms of affording copyright? The stand up comedian (or other author) is aware of the security camera on the premises and has given authorization for the camera to take video/audio images of his improvisation; therefore, does the purpose of the recording matter in affording copyright?

Response:

Fun question. We start with the statutes. Sec. 102 "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression..." and the definitions in sec. 101: "A work is 'fixed' in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration...."

As you note, a key is "by or under the authority of the author." It would likely be up for argument whether the performer's awareness of the camera implicitly authorized the fixation for copyright purposes. If he did, note that he and not the security camera operator would be the "author" of the resulting copyrighted work. If he didn't, there's no copyright at all. If he authorized the taping, and didn't sign away any rights, do you think he can he stop police from copying the security camera footage to investigate a theft discovered after the performance?