Prince, Radiohead, and the Bootlegging Provision of the Copyright Act

Prince is at it again. We've covered his legal antics before -- his lawyers went after a number of fan sites last November, and Universal Music sent a takedown notice to YouTube last June over a video of a toddler dancing with "Let's Go Crazy" playing in the background. This time, his record label apparently sent a takedown notice to YouTube over a video of Prince performing a cover of Radiohead's "Creep" at the Coachella Valley Music & Arts Festival. The interesting thing is that Radiohead wants the video put back up. A copy is available at present, but it's hard to tell whether this is because someone else posted the video or because YouTube put it back up at Radiohead's request.

Untangling all the legal strings here is more difficult than it initially appears. At first, this looks like His Purpleness engaging in some flagrant DMCA abuse. Radiohead owns the copyright in the musical composition of "Creep," and the concertgoer probably owns the copyrights in his sound and video recording of the performance (anyone know the technical details on this?). But Prince may have some legal ground to stand on.

Section 1101 of the Copyright Act, 17 U.S.C. § 1101, states that anyone who "fixes the sounds or sounds and images of a live musical performance . . . shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright." It also applies to anyone who "distributes or offers to distribute . . . or traffics in any copy or phonorecord fixed as described [above]." The person who made the unauthorized video pretty clearly violated the first part of this anti-bootlegging provision, and Prince has a non-frivolous argument that YouTube is violating the second part by "distribut[ing]" or "traffic[king]" in the unauthorized recording. This is not something YouTube would want to take lightly.

Exactly how section 1101 fits with the rest of the Copyright Act is not altogether clear. It just says that a violator will be subject to the remedies in sections 502 through 505. These are the ordinary remedies that a plaintiff can obtain in a successful infringement lawsuit -- an injunction (17 U.S.C. § 502), impounding of infringing articles (17 U.S.C. § 503), damages and profits (17 U.S.C. § 504), and costs and attorneys fees (17 U.S.C. § 505). It does not make unauthorized fixation equivalent to copyright infringement, and it does not give the performer copyrights in the performance. Most importantly, a plain reading of the statute suggests that section 1101 doesn't fit within the notice-and-takedown procedure found in section 512 of the DMCA, 17 U.S.C. § 512. Specifically, it doesn't look like a violation of section 1101 is a basis for sending a "notification of claimed infringement," or that Prince is "authorized to act on behalf of the owner of an exclusive right that is allegedly infringed." 17 U.S.C. § 512(c)(3) (emphasis added). For more detailed information about the notice-and-takedown procedure, see our legal guide section on Notice-and-Takedown.

So, Prince's objection to the video may not be as flimsy as it initially seemed, but sending a DMCA takedown is technically the wrong approach to deal with it under the circumstances. Of course, an old-fashioned cease-and-desist letter laying out the section 1101 claim would be entirely justifiable from a legal -- if not from a public relations -- point of view. It's hard to make a call without seeing what exactly Prince's lawyers sent to YouTube in the first place. In any event, YouTube's lawyers truly are stuck between the horns of a dilemma on this one.


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Maybe this was covered by 106 after all...

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. Eric.

Interesting point

Thanks for chiming in, Eric. It's likely that somebody official from Coachella -- if not someone directly connected to Prince -- taped or made a video tape of the performance with permission. (Note that there's a Coachella DVD for sale on the website - it's not clear, but it probably is from a previous year's performance.) Then, Prince and whoever made the recording (assuming one was made) could be joint authors if they had the intention to create a joint work. But, the festival people probably deal with all this stuff through contract anyway. Very interesting.

Performance copyright

Since Prince is the performer, he, not the videotaper owns the copyright in the performance. At most the videotaper would have a "thin" copyright in whatever contribution he made as far as editing, etc.

A live performance is distinct from a photograph of person. In the case of a photograph, the person taking the photo owns the copyright as a person's face is not a work of art in the same way a live performance is.

But Prince changed the song!

Two observations I haven't seen elsewhere yet:

1. I was at Coachella, and saw Prince perform Creep. He changed the refrain lyrics to "you're a creep". If that qualifies as a derivative work, then it would be prima facie infringing (i.e., not within any PRO licenses that Coachella may have obtained). Does the anti-bootlegging statute cover *infringing* performances? Hmmm.

2. The "simultaneous fixation" doctrine only applies if the simultaneous fixation was done in the course of a transmission (see sec 101 definition of "fixed"). So whether Prince and/or Coachella recorded it is irrelevant, unless it was also transmitted (I'll note that AT&T sponsored live transmissions of some Coachella performers, but not Prince).

What a great exam question!

Simultaneous Fixation

Thanks for your comments, Fred. This is so intersting I've decided to write a new post.