What prevents me from making a derivative of a work never fixed in a tangible medium?

Question

Suppose I'm a singer-songwriter in the United States, and at one of my concerts, I perform a previously unreleased (and in fact never-before-recorded) song. I play this song from memory and by ear; I have never written down the tune or words. Perhaps I invented this song while on tour, and I intend to make a recording when my tour is over. Over the course of the tour, there are thousands of eyewitness accounts to this song's existence and its authorship by me.

Before I ever produce a recording of the song, though, a fan produces some kind of derivative recording (a cover, or a song that's simply very similar) of my song. Do I have any grounds to claim copyright infringement, considering that I never fixed the work as either a sound recording or written musical composition? (Let us ignore the fact that I could lie by creating such a fixation after the fact and saying that it predates the recording -- suppose I honestly admit as a point of pride, or am unable to deny due to long-term witness accounts, etc., that the song was never fixed prior to the creation of the fan work.)

What if a fan recorded my actual performance with a camera at my show? In that case, I was in no way responsible for the creation of the recording, but a significant part of the recording's value is my music. Do I have a copyright claim to control the distribution of such a fan recording, and does the prior existence of such a recorded fixation influence the derivative-work case above?

Answer 1

As always, it is hard to prove a negative, but there is no copyright in a work that has not been fixed.

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression... (17 USC 102)

Further, a fixation is only a fixation if it is "by or under the authority of the author" (17 USC 101).

This post from an attorney at Vogels & Assoc. agrees that without fixation there is no copyright.

Unauthorized fixation (the rogue audience filmer) and distribution of unauthorized fixations is prohibited:

Whoever, without the consent of the performer or performers involved, knowingly and for purposes of commercial advantage or private financial gain— (1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation; ... (18 USC 2319A, and see also 17 USC 1101)

This is sometimes called a "fixation right" that performers own. It's also referred to as the "anti-bootlegging" statute. US v Moghadam calls this a quasi-copyright protection.

To answer your question, where there is no fixation, there is no work to infringe, and whatever you would make wouldn't be a derivative work. Unauthorized fixation of the live performance is prohibited, and so is unauthorized distribution and reproduction of that unauthorized fixation. The performer doesn't get a real copyright in any element of the performance unless they fix it or authorize it to be fixed.

Related Reading

Hughes, Justin, Understanding (and Fixing) the Right of Fixation in Copyright Law (March 29, 2014). 62 J. Copyright Soc'y USA 385 (2015); Loyola-LA Legal Studies Paper No. 2014-10.

US v. Moghadam, 175 F.3d 1269 (11th Cir. 1999)