Catherine Conrad is an entertainer who performs wearing a giant banana costume. She was hired to perform a singing telegram at a credit union trade association event. Conrad authorized audience members to take photos or videos for their personal use only. Conrad sued several credit unions, some credit union employees and the trade association of credit unions for copyright infringement after audience members posted some of the photos on Facebook and other Internet sites. The district court dismissed the copyright infringement claim as having no merit. The Seventh Circuit Court of Appeals affirmed.
Conrad has copyrights, which we’ll assume are valid, on photographs and sculptures of her in her banana costume. She has also registered a copyright on the costume itself, but there is doubt (not necessary for us to resolve) about the validity of that copyright because banana costumes quite similar to hers are, we are surprised to discover, a common consumer product.
(Opinion pdf page 4).
The Seventh Circuit ruled that Conrad’s performance was not copyrightable, because it was not fixed in any tangible medium of expression. Fixation is one of the basic copyright requirements. Section 102 of the Copyright Act states:
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.
Fixation in the context of Conrad’s Bananagram performance would require her to either record her performance or create a written dance notation of her performance. Conrad did not do either of those.
No Derivative Works
The Seventh Circuit ruled that it is unlikely that the photos and videos taken by the audience were derivative works. Derivative works are works based on one or more preexisting copyrightable works. The copyright owner owns the exclusive right to prepare derivative works. The underlying preexisting work or works must be copyrightable. If Conrad’s costume was copyrightable, which the Seventh Circuit doubted it was, Conrad would own the right to prepare derivative works, such as photos and videos.
The Seventh Circuit did not think that the photos and videos taken by the audience met the originality requirement. Section 102, quoted above, requires “original works of authorship.”
It’s unlikely that the photos and videos were derivative works; to be such a work, a photograph, or any other copy, must have an element of originality—some modicum of creativity added to the copyrighted work. To extend copyrightability to minuscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain work. But whether the photos or videos were mere depictions, or sufficiently departed from the originals to be derivative works, they would violate Conrad’s copyrights if the copyrights covered material that members of the audience duplicated in their photos and videos.
(Opinion pdf page 5).
No Unauthorized Video or Tape Recording of a Live Musical Performance
Conrad authorized the members of the audience to take photos or make videos for their personal use. By doing so, she granted the audience members a limited license. It’s possible that posting the photos and videos on the Internet exceeded the scope of the license. Section 1101(a) prohibits the unauthorized fixation and/or reproduction of live musical performances. Section 106(5) prohibits the unauthorized public display of copyrighted musical or choreographic works.
But Conrad does not invoke either provision, and probably couldn’t because one of the arrangers advised the audience of the prohibition at the end of the performance—and Conrad doesn’t contend that any photos or videos of it were posted on the internet before the performance ended.
(Opinion pdf page 6).
The Seventh Circuit ruled that Conrad’s suit had no merit and affirmed the district court’s dismissal.
This case is Catherine Conrad v. AM Community Credit Union, No. 13-2899, Seventh Circuit Court of Appeals.