Live Musical Performance Right in the United States: KISS Epiloque

(IPRinfo 3/2006)
Michael Landau
Professor of law and director
Intellectual property, technology & media law program, Georgia State University College of Law, Atlanta, GA
Fullbright scholar and lecturer, IPR University Center and Hanken (fall 2005)

In late 2005, I wrote an article titled Constitutional Impediments to Protecting the Live Musical Performance Right in the United States that was published at IPRinfo number 4/2005.

The article discussed the challenges to the statutes that were added to Titles 17 and 18 of the U.S. Code in response to the WIPO Performances and Phonograms Treaty creating potential civil liability (17 U.S.C.A. § 1101) and criminal liability (18 U.S.C. § 2319A) for engaging in the following acts: a) unauthorized recording of a live musical performance; b) unauthorized transmission to the public of a live musical performance; c) unauthorized sale and distribution of recordings of live performances.

One of the cases that was discussed was Kiss Catalog v. Passport International Productions, 350 F. Supp.2d 823 (C.D. Cal. 2004), in which the recently enacted anti-bootlegging statutes were held to be unconstitutional because the U.S. Congress did not have the legal authority to enact them.

A petition for rehearing was granted in the case, and shortly after the article was published in IPRinfo, in late December 2005, the court arrived at the opposite holding. See, Kiss Catalog v. Passport International Productions 405 F.3d 1169 (C.D. 2005).
Conflict between the Copyright Clause and the Commerce Clause.

I will give a brief recap of the first opinion to put the discussion of the result on rehearing in context. Kiss Catalog v. Passport International Productions, 350 F. Supp.2d 823 (C.D. Cal. 2004), rev’d on rehearing Kiss Catalog v. Passport International Productions 405 F.3d 1169 (C.D. 2005), involved a lawsuit brought by KISS to enjoin the unauthorized sale of DVDs of old concerts under 17 U.S.C.A. § 1101.

Judge Rea of the Central District of California held that the Section 1101 was unconstitutional on several grounds. The statute violated the permissible boundaries of the Copyright and Clause of the United States Constitution. The Copyright Clause provides in relevant part, ”To promote the Progress of Science and the useful Arts [Congress shall provide] exclusive Rights for limited Times to Authors….and their Writings.” (Article I, Section 8, Clause 8).

The anti-bootlegging statutes violated the Copyright Clause for two reasons: First, the anti-bootlegging statute dealt with live musical performances. Because live performances are not ”fixed” works, they are not the ”Writings” of an ”Author.” Congress, therefore, does not have the authorization to protect them. Second, the prohibitions contained in the anti-bootlegging statutes are of unlimited duration. Therefore, they are in violation of the ”limited Times” language of the Copyright Clause.

The Court also found that the statutes could not have been enacted pursuant to the Commerce Clause authority. Despite the fact that Congress does have the authority to ”regulate commerce,” attempting to provide perpetual ”copyright-type” protection under the Commerce Clause is ”fundamentally inconsistent” with the goals of the Copyright Clause. The statutes were held to be invalid. An order in favor of the defendant was entered. Now it becomes interesting.

After the trial, and after Judge William J. Rea entered the Trial Order holding Section 1101 unconstitutional, The U.S. Attorney General’s Office became aware of the decision. The Attorney General’s Office sought leave to intervene and moved for a rehearing pursuant to 28 U.S.C.A. § 2403(a). The failure to allow the counsel from the United States Government to defend the constitutionality of the challenged statute is reversible error. While the first case was pending, the court had not notified the Government.

Commerce clause applicable in ”fixation” issue
The court granted the motion, and now also heard the U.S. Government’s arguments with regarding the legislative authority of Congress under both the Copyright and Commerce Clause, as well as the issue of whether there was a ”fundamentally inconsistent” clash between the two clauses on the issue of perpetual protector for unfixed performances. Judge Rea, the original Judge died before the argument, and the case was heard by Judge Fisher. On rehearing, the court viewed the ”fixation” issue in a totally different manner, and by so doing, was able to reach the holding that the legislation was permissible under the Commerce Clause.

Instead of following all of the references in the legislative history to ”Copyright,” and concentrating on the fact that the statute, indeed, was placed in Title 17 to be part of the copyright Act, Judge Fisher did not hold that the legislation was promulgated pursuant to Copyright Clause authority. Instead, he concentrated on the unfixed nature of a live performance.

Because live performances are not ”fixed,” they are not ”Writings” without the Constitutional sense of the word. Live performances cannot, therefore, by definition, fall within the scope of the congressional power to provide ”exclusive Rights” for ”limited Times” to ”authors. . . and their Writings.” Because the unfixed live performances were outside of the scope of the Copyright Clause, for the purposes of the analysis, and especially for the purpose of any potential fundamentally inconsistent conflict between grants of Congressional authority, the Copyright Clause was not relevant.

”Unfixed performances” outside the scope of Copyright Clause
By being wholly outside of the scope of the Copyright Clause, the judge reasoned that Congress must have promulgated the statutes in question under some other authority granted a different empowering clause of Article I, even though there was no question at the time that Congress thought that it was acting under its Copyright Clause authority.

The court noted that Congress had very broad authority under the Commerce Clause to regulate almost anything that can have ”substantial effect” on commerce. It was assumed that an illegal market in bootleg concert recording would have an obvious ”substantial effect” on commerce. Given the effect on commerce, the legislation was found to be a proper exercise of Congressional legislative authority.

Moreover, because the ”unfixed performances” were completely outside of the scope of the Copyright Clause and could not be regulated under the Copyright Clause, there is no issue a conflict between provisions. The anti-bootlegging provisions of Section 1101 were, therefore, wholly legal and justified in the court’s opinion.

Anti-bootlegging statutes unconstitutional
The courts are in currently in disagreement as to whether the civil anti-bootlegging statute and the criminal anti-bootlegging statutes are unconstitutional or valid exercises of the Commerce Clause power, and whether the lack of ”fixation” renders the legislation unconstitutional under the Copyright Clause, or renders the Copyright Clause irrelevant in the analysis.

The ”fixation” requirement may be met by simultaneously taping the live musical performances, based upon the precedent that live sports events that are being broadcast to the public do meet the fixation requirement if they are simultaneously videotaped. The fixation issue may be relatively easy to rectify. Even if it is, however, there is still the ”limited Times” issue and the conflict between the Copyright Clause and the Commerce Clause.

This article is continuation and an epilogue to the previous article ”Constitutional Impediments to Protecting the Live Musical Performance Right in the United States” by Michael Landau, which was published in IPRinfo 4/2005.

United States District Court For The Central District Of California, (Judge Fisher)
December 21, 2005
KISS Catalog, Ltd v. Passport International Productions, Inc.
Case No. Cv 03–8514 Dsf (CWX)
2005 U.S. Dist. Lexis 37671

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