Does a performer have a copyright to a recording of their performance in the United States?

Does a performer have a copyright to a recording of their performance in the United States?

A copyright is a set of exclusive rights granted to the creator of a new expressive work. When an artist creates a new work the artist is automatically granted a copyright to that work.  A copyright can be registered to strengthen the rights associated with the work but registration of the copyright is not required for the copyright to be granted.  A copyright gives the owner of the copyright the exclusive right to reproduce, distribute, perform, display, transmit and prepare derivative works base on the original.  If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement.  A copyright owner can stop copyright infringement by filing a lawsuit which requests an injunction and get monetary damages for copyright infringement which has already occurred.

United States copyright law says that a copyright is created when a work is fixed in a tangible medium of expression.  This means that a work must be preserved in some way for a copyright to be created.  Transitory works, like a spoken story or a song which is sung, are not granted copyright protection.  For a copyright to be granted a story or song must be written down or saved as an audio recording.

The recording of a transitory work by someone other than the creator of the transitory work creates a complicated legal situation.  On one hand, the transitory work itself is not granted copyright protection, however, a audio or video recording of a transitory work is granted a copyright.  When a transitory work is recorded, the copyright is granted to the person recording the transitory work, but not the artist that performed the work.  While this may seem unfair to the artist that conceived of the transitory work, it is a fundamental aspect of copyright law that a copyright is only granted when the work is fixed in a tangible medium.

A case which touches on the complicated legal situation crated by transitory works is ANDREW GREEN v. KANYE WEST, 19-cv-00366 (D.C.SC 2019).  The plaintiff in this case is the guardian of a minor child.  Minor children are not named in lawsuits in United States Federal Court so the child is just refereed to by their initials NG. NG and her adoptive mother, Green, were traveling with NG’s biological mother, Johnson.  To bring good luck to their journey NG said a short prayer, which Johnson recorded on her cellphone.  Johnson uploaded the video of the prayer to social media, and the video became very popular.

The defendant is Kanye West an internationally renowned song writer and performer.  The defendant contacted Johnson for permission to use the video of NG in one of the defendant’s upcoming songs.  In February 2016, Johnson verbally agreed to allow the defendant to use the recording, in exchange for monetary compensation.  The sound recording was used by the defendant but monetary compensation was never given.  The plaintiffs then filed suit against the defendant for copyright infringement.

Normally, the case would be dismissed because NG does not have a copyright in the recording made by Johnson.  However, NG’s adoptive parents engaged an attorney who was well versed in United State copyright law.  The plaintiffs persuaded Johnson to register the copyright in the recording and then assign the copyright to NG.  This assignment means that NG now owns the copyright to the recording of NG’s transitory work.  This is an intelligent strategy to solve the issue of a transitory work not being granted a copyright.

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