Copyright And Performance Rights In An Online Video World

We can chalk up another Internet-prompted intellectual property frontier: performance rights. People have been performing for one another for centuries. But suddenly courts are grappling with performance copyright claims, including two quite unusual cases that led to decisions by two of the country's most prominent and thoughtful judges.

Performances, at least live performances, generally fall outside of copyright protection. A copyrighted work must be fixed in a tangible medium of expression, and live performances are dynamic and ephemeral, not fixed. But there's an Internet twist — everyone has video cameras these days, and the resulting videos frequently end up online. So performances are often fixed (often by someone else's video, perhaps unauthorized by the performer), and those videos are often made widely available.