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[Minor spoiler for the latest "Emily in Paris" episode.]

In the Netflix show "Emily in Paris", Emily's singer-songwriter friend Mindy has an idea for a song while the two of them are walking down a street. She takes over the piano of a nearby busker, and asks Emily to record her singing the song so she won't forget the words.

Naturally a crowd forms, and one of them also records her. Later he posts it to TikTok. Does he have the right to do this? Does the songwriter not have copyright protection because she didn't "fix" it in tangible form (e.g. writing the lyrics or music on paper or a computer file) before performing it?

In the episode, Mindy got a job on a TV show when the producers saw the video, so she's not likely to complain at that moment. But I can imagine licensing disputes down the road.

This happens in Rome if the jurisdiction matters.

Barmar
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2 Answers2

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Italian copyright law protects works regardless of whether they have been "fixed" (a condition that the Berne convention permits its signatories to impose but does not require). In addition to this, EU directive 2001/29/EC requires member states to grant performers "the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part ... of fixations of their performances."

Therefore, the crowd member's posting of the video without the performer's permission was an infringement of her rights both as a performer and as the author of the musical work.

Even in a jurisdiction such as the United States that requires fixation as a condition for the existence of copyright, the copyright accrues to the author of the work, not to the person who fixed the work. Had this event occurred in the US, the crowd member's recording the songwriter's performance would have caused the songwriter's copyright in the song to come into being, and the subsequent posting of the video would still have been an infringement. At least, this is the natural conclusion from the literal provisions of the statute; I do not know whether courts have interpreted it differently. The statute, 17 USC 102, says

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

...

(2) musical works, including any accompanying words;

Beyond the requirement to be in a "tangible medium," there is no limitation on the circumstances of the fixation.

phoog
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I am answering based on the law that would apply if the scenario described were to happen in Canada.

The performer has the exclusive right to reproduce the fixation that was made without the performer's authorization.

The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961) (Rome Convention), in Article 7, envisages protection for performers that includes the possibility of preventing the reproduction, without their consent, of a fixation of their performance, where the original fixation itself was made without their consent (i.e. a bootleg of previously unrecorded material).

Canada is a signatory to the Rome Convention. So are Australia and Italy; the United States is not.

Part II of Canada's Copyright Act implements the protections for performers' performances, fulfilling Canada's obligations under the Rome Convention.

Sections 15, 24, and 26 give make the performer the first owner of "a copyright in the performer's performance" even where the first fixation is the unauthorized fixation.

Jen
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