What prevents me from making a derivative of a work never fixed in a tangible medium?
<p>Suppose I'm a singer-songwriter in the United States, and at one of my concerts, I perform a previously unreleased (and in fact never-before-recorded) song. I play this song from memory and by ear; I have never written down the tune or words. Perhaps I invented this song while on tour, and I intend to make a recording when my tour is over. Over the course of the tour, there are thousands of eyewitness accounts to this song's existence and its authorship by me.</p>

<p>Before I ever produce a recording of the song, though, a fan produces some kind of derivative recording (a cover, or a song that's simply very similar) of my song. Do I have any grounds to claim copyright infringement, considering that I never fixed the work as either a sound recording or written musical composition? (Let us ignore the fact that I could lie by creating such a fixation after the fact and saying that it predates the recording -- suppose I honestly admit as a point of pride, or am unable to deny due to long-term witness accounts, etc., that the song was never fixed prior to the creation of the fan work.)</p>

<p>What if a fan recorded my actual performance with a camera at my show? In that case, I was in no way responsible for the creation of the recording, but a significant part of the recording's value is my music. Do I have a copyright claim to control the distribution of such a fan recording, and does the prior existence of such a recorded fixation influence the derivative-work case above?</p>

<p>As always, it is hard to prove a negative, but there is no copyright in a work that has not been fixed.</p>

<blockquote>
  <p>Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression... (17 USC 102)</p>
</blockquote>

<p>Further, a fixation is only a fixation if it is "by or under the authority of the author" (17 USC 101).</p>

<p><a href="http://www.socialbrite.org/2009/08/16/the-rules-around-capturing-public-performances/" rel="noreferrer">This post from an attorney at Vogels &amp; Assoc.</a> agrees that without fixation there is no copyright.</p>

<p>Unauthorized fixation (the rogue audience filmer) and distribution of unauthorized fixations is prohibited:</p>

<blockquote>
  <p>Whoever, without the consent of the performer or performers involved, knowingly and for purposes of commercial advantage or private financial gain—
  (1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation; ... (18 USC 2319A, and see also 17 USC 1101)</p>
</blockquote>

<p>This is sometimes called a "fixation right" that performers own. It's also referred to as the "anti-bootlegging" statute. <a href="https://scholar.google.com/scholar_case?case=5358238312826864157" rel="noreferrer">US v Moghadam</a> calls this a quasi-copyright protection.</p>

<p>To answer your question, where there is <em>no</em> fixation, there is no work to infringe, and whatever you would make wouldn't be a derivative work. Unauthorized fixation of the live performance is prohibited, and so is unauthorized distribution and reproduction of that unauthorized fixation. The performer doesn't get a real copyright in any element of the performance unless they fix it or authorize it to be fixed.</p>

<h3>Related Reading</h3>

<p>Hughes, Justin, <a href="http://dx.doi.org/10.2139/ssrn.2417820" rel="noreferrer">Understanding (and Fixing) the Right of Fixation in Copyright Law</a> (March 29, 2014). 62 J. Copyright Soc'y USA 385 (2015); Loyola-LA Legal Studies Paper No. 2014-10.</p>

<p><a href="https://scholar.google.com/scholar_case?case=5358238312826864157" rel="noreferrer">US v. Moghadam, 175 F.3d 1269 (11th Cir. 1999)</a></p>

united-states copyright music recording