Vol 7 No 1 - Roger Williams University School of Law

negative pregnant that suggests that the term “Writings”operates as a ceiling on Congress’ ability to legislatepursuant to other grants. Extending quasi-copyrightprotection to unfixed live musical performances is in noway inconsistent with the Copyright Clause, even if thatClause itself does not directly authorize such protection.Quite the contrary, extending such protection actuallycomplements and is in harmony with the existing schemethat Congress has set up under the Copyright Clause. Alive musical performance clearly satisfies the originalityrequirement. Extending quasi-copyright protection alsofurthers the purpose of the Copyright Clause to promotethe progress of the useful arts by securing some exclusiverights to the creative author. Finally, with respect to thefixation requirement, upon which this opinion focuses,although a live musical performance may not have beenfixed, or reduced to tangible form, as of the time thebootleg copy was made, it certainly was subject to havingbeen thus fixed. Our conclusion that extending copyrightlikeprotection in the instant case is not fundamentallyinconsistent with the fixation requirement of theCopyright Clause is bolstered by an example from theprior copyright law. If a live performance is broadcast,e.g., by radio or television, and simultaneously recordedby the performer, any unauthorized recording by a personreceiving the broadcast constitutes copyrightinfringement of the sound recording or motion picture,notwithstanding that the infringer actually copied thelive performance directly, and not the fixation thereof.This result is based upon the last sentence of thedefinition of “fixed” in 17 U.S.C. § 101. That last sentenceprovides: “A work consisting of sounds, images, or both,that are being transmitted, is ‘fixed’ for purposes of thistitle if a fixation of the work is being madesimultaneously with its transmission.” This definitioncreates a legal fiction that the simultaneous fixationoccurs before the transmission and the unauthorizedrecording . . . . While we are aware that theconstitutionality of this aspect of the statute has neverbeen tested, the ease with which it has been incorporatedinto the prior copyright law suggests that fixation, as a