States are terrible at enforcing copyright law – GAIT negotiations prove.

Since 1978, the federal copyright law has protected all "works of authorship fixed in a tangible medium of expression ... " 45 These include sound recordings, such as authorized fixations of a musical performance on a tape or CD. The 1976 Copyright Act also protected live transmissions of performances, if the transmission was being simultaneously recorded (fixed).46 Missing from the scope of federal protection were live performances, including transmissions not undergoing simultaneous fixation. For example, a live performance in a concert or dance hall, or a radio broadcast not simultaneously recorded by the broadcaster, did not come within the subject matter of federal law.47

Many states, however, had developed protections for unfixed performances, through common law copyright, unfair competition, 48 or right of publicity49 doctrines, or by specific legislation.50 But the problems endemic to state intellectual property regimes prevailed: territoriality and disuniformity of protection. In addition, states afforded no protection against an important source of bootlegged recordings, foreign imports. For one thing, if the unauthorized fixation took place abroad, no violation of the state law would have occurred.51 Moreover, only the U.S. Customs Service had authority to block entry of foreign recordings of unauthorized fixations, but no federal law empowered the Customs Service to act. 52

Thus, effective protection required the intervention of federal law. The need for a federal regime became particularly apparent as a result of the elaboration of the TRIPs (trade-related aspects of intellectual property) agreement during the Uruguay Round of the GAIT negotiations. Article 14.1 of the TRIPs agreement requires:

In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorization: the fixation of their unfixed performance and the reproduction of such fixation. Performers shall also have the possibility of preventing the following acts when undertaken without their authorization: the broadcasting by wireless means and the communication to the public of their live performance. Thus, as part of the Uruguay Round Amendments Act, Congress added a new Chapter 11 to the federal copyright act. 53 The federal fixation right adopts the TRIPs requirements,54 with a further specification extending copyright infringement remedies against anyone who: "distributes ... any copy or phonorecord [of the sounds or sounds and images of a live musical performance] fixed [without authorization], regardless of whether the fixations occurred in the United States. " 55

This provision deserves emphasis. While the doctrine of territoriality circumscribed state law protection for live performances, federal law has explicitly overridden territorial limitations. Under chapter 11, the act of U.S. distribution makes out the violation. Thus, for example, even if the unauthorized recerding of a live performance was not unlawful in the country in which the fixation was made, distributing that recording in the U.S. would be illicit.

What of the relationship of the new federal law to state laws affording similar rights? Chapter 11 explicitly preserves state statutory and common law remedies.56 In this case, unlike state moral rights laws, however, federal coverage of fixation rights in musical performances is so much more complete that the persistence of state remedies is likely to have little practical import. On the other hand, state remedies remain the only recourse with respect to fixation of non-musical performances, for example, theatrical improvisations and spectacles.