Fixing fixation: A copyright with teeth for improvisational performers

Federal copyright law's ''fixation'' requirement poses an imposing obstacle for improvisational performers seeking federal protection for their works. Many improvisational works are not fixed in permanent form, and therefore fail federal copyright law's fixation requirement for copyright ability. Works that do meet the requirement encounter a second obstacle--the copyright that the improvisational performer receives may not be an effective means of stopping unauthorized use of material created at improvisational performances. This Note argues that the state remedies available to improvisational performers do not adequately address their needs-either because these remedies are not designed for the protection of creative works, or because the law is hopelessly underdeveloped. By contrast, bringing improvisational performers within the protective sphere of federal copyright law would create uniformity, and provide remedies that are better suited to the needs of improvisational artists. While constitutional and practical concerns arise when considering federal copyright protection for improvisational performances, the objections posed by these issues are not insurmountable. In specific, the author argues that the Patent and Copyright Clause of the Constitution does not limit federal copyright protection to works that are fixed in a tangible medium of expression, and that practical concerns can be addressed by tailoring a narrow remedy to the needs of improvisational performers. The Note presents three possible means by which improvisational performers can. be granted federal protection, and argues for their adoption. First, the Copyright Act should be amended to clarify that fixations made simultaneously with a performance are within the statute's definition of ''fixed.'' Second, the statute's anti-bootlegging provision should be altered to apply to works other than musical works. Finally, the statute's definition of fixation should be relaxed to accommodate works created at improvisational performances.