The Fixation Requirement

by Thomas James, Esq.

You and your band are sitting in your makeshift studio when Jack, the bass player, suddenly announces that he has an idea for a song. He has worked out the words, melody, and arrangement parts in his head and he orally communicates them to the other members of the band. They all like it so they perform it during their concerts. Famous recording artist Big2U attends one of these concerts, hears the song, and decides to perform and record it himself. He makes a few million dollars from it and earns a Grammy Award. Jack feels like he has been cheated. (The other members of the band do, too, but for reasons not specific to this song.) What can he do?

According to 17 U.S.C. § 102(a), “[c]opyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Copyright protection does not exist in a work that has not been fixed in a tangible medium of expression. No matter how completely you’ve worked out a song, a story, a play, or something else in your head, it won’t be protected by copyright unless and until you write it down or record it. Merely performing it or reciting it is not enough. Unwritten, unrecorded performances of a song, story, speech, choreography, etc. are not protected by copyright.

So, unless somebody at some point bothered to write out the song or record a performance of it, your band might just be out of luck. Big2U gets bigger; you get smaller.

“You stole my song!”

The fixation requirement came into play recently in the case of Wilson v. Kelly, Sony Music, et al. In the complaint, Ricardo Wilson asserted that the song “Love Letter” was his creation, that he “shared the words of the song, as well as the cadence, including at least four bars, the melody and arrangement” with R. Kelly and Kelly’s manager during a telephone call, and that Kelly and Sony Entertainment failed to credit him with the authorship of the song.

Wilson claimed that he effected a “poor man’s copyright” registration in 2009, a year before the song and hit album were released, but that he didn’t actually register a copyright in the song until 2011, after R. Kelly’s performance of the song was released. The registration, however, was only for the lyrics, not the music. He had not sufficiently alleged that he had fixed the music in a tangible medium prior to Kelly’s and Sony’s alleged infringement. He was not able to prevail on the lyrics infringement claim because, according to the court, he failed to allege facts plausibly showing that the lyrics were substantially similar. Claim dismissed.

Unlike actual copyright registration, a “poor man’s copyright,” such as mailing a copy of the work to yourself, does not create presumptions of authorship, ownership or validity. To get the benefit of those presumptions in the United States, you need to register the copyright with the Copyright Office.

“You stole my singing banana performance!”

Musical, dramatic, choreographic, and other kinds of performances can be protected by copyright. Your band’s performance at a concert, for example, might be protected by copyright. Again, though, the performance has to be fixed in a tangible medium, such as a recording. Otherwise, it is not protected by copyright.

This issue came up in Conrad v. AM Community Credit Union. There, a woman calling herself the Banana Lady delivered singing telegrams while dressed in a banana costume. When a customer posted her performance on Facebook, she sued for copyright infringement. The court held that because the performance was not fixed in a tangible medium of expression, it was not protected by copyright. Claim dismissed.

But wait? Didn’t a copyrighted work come into being when somebody recorded the performance that was posted on Facebook? Didn’t the Banana Lady’s performance become “fixed in a tangible medium” at that point? No. To qualify, the fixation has to be by or with the authorization of the author.

Morals of the stories

What can we learn from all this? First, if you have an original song, lyric, story, movie, etc. in your head, write it down or record it. No matter how excited and eager you are to tell someone about it, get it fixed in a tangible medium first before communicating it to other people. You can have another person perform the actual act of writing or recording, but make sure you have some evidence that the recording or other fixation was done at your direction, with your permission. Then, once you have it written down or recorded, promptly register it with the Copyright Office.

Need help registering or enforcing your copyright in a song or other creative work? Contact the Law Office of Tom James.

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