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Fundamentals of Intellectual Property Law

4/8/2009 1:37:00 PM EST

The Constitutionality of Anti-Bootlegging Legislation

David Nimmer, of Counsel, Irell & Manella LLP

Posted by David Nimmer

In an Emerging Issues Analysis, Professor David Nimmer offers a comprehensive examination of constitutional challenges to the anti-bootlegging provisions of the Uruguay Round Agreements Act: 17 U.S.C. § 1101, creating civil liability for bootlegging live musical performances, and 18 U.S.C. 2319A, imposing criminal liability for the same activity. The author, who lectures widely in the copyright arena, begins:

It doesn’t have to be the most complicated thing in the world. Decked out in their trademark face paint and garish stage outfits, the American rock band KISS performed a 1976 concert at New Jersey’s Roosevelt Stadium. While the band was onstage, its performance was simultaneously projected onto a screen behind the band, thanks to a cameraman hired to film them for that purpose. Three decades later, the lost footage resurfaced. Packaged as “KISS: The Lost Concert,” DVDs began selling in 2003. Litigation ensued under the caption KISS Catalog v. Passport International Productions, 350 F. Supp. 2d 823, 828 (C.D. Cal. 2004).

At roughly the same time, the U.S. Attorney in Manhattan brought criminal charges for a comparable offense, in United States v. Martignon, 346 F. Supp. 2d 413 (S.D.N.Y. 2004). In both cases, defendants challenged the constitutionality of the implicated statutes.

If videos of the KISS concert had gone on sale nearer in time to the concert, federal law would have afforded no remedy. Both in 1976, before the current Act took effect, and even for almost two decades after, federal law did not regulate unfixed concert performances.

But the law took a radically new direction when Congress passed the Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994). That amendment added Chapter 11 to the Copyright Act, comprising a single section creating civil liability for bootlegging live performances. See 17 U.S.C. § 1101. Simultaneously with creating that civil remedy, the URAA also defined the same activity as a crime. See 18 U.S.C. § 2319A. That latter provision is sandwiched into the codification of criminal law, in between the antecedent provisions for criminal copyright infringement, 18 U.S.C. § 2319, and for trafficking in counterfeit goods or services, 18 U.S.C. § 2320. The impetus for those provisions is that the TRIPs Agreement (part of the Agreement establishing the World Trade Organization, which came out of the Uruguay Round of multilateral trade negotiations) mandates that all member states must respect the Rome Convention. That international treaty, many decades old, requires recognition of performers rights.

Although the United States could have implemented its requirement to recognize performers rights by according them solely to non-Americans, Congress did not choose that methodology. Instead, the scope of Section 1101 and Section 2319A is broad. On their face, they are wide enough to encompass the 2003 release of the 1976 KISS concert. But is such a law constitutional? Aye, theres the rub.

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