UC Law SF Communications and Entertainment Journal


Susan M. Deas


With the addition of Section 1101 to United States copyright law, the United States Congress did more than just attempt to bring United States law into compliance with its obligations under TRIPs. By allowing live musical performers to seek remedies against anyone who, without performers' consent, commits Section 1101 subject acts, such as fixation of the sounds or sounds and images of the performers' live musical performance, Congress granted a type of protection of well-nigh constitutional significance. That is, Congress granted protection to unfixed material-an enactment that departs from the traditional interpretation of the Copyright Clause power as permitting congressional grants of copyright protection to extend only to works of authors fixed in a tangible medium of expression.

This Article examines the legislative history behind the enactment of Section 1101 and the potential ramifications of the 1996 WIPO Performers and Phonograms Treaty upon that section. The author argues that, assuming Section 1101 passes constitutional muster, traditional work made for hire doctrine and, by analogizing consent grants to grants assigning exploitation rights in copyrighted works, assignment and termination of copyright analysis should apply to Section 1101 to minimize Section 1101 implementation questions and uncertainties upon transition to compliance. This Article then analyzes some of the remaining Section 1101 implementation questions and uncertainties and looks to state and international law for potential solutions to such questions and uncertainties. The Article concludes with a recommendation of some changes that Congress, the Copyright Office, courts and parties affected by Section 1101 may wish to make.