Buffalo Intellectual Property Law Journal


Lee H. Rousso

First Page


Document Type



In Copyright


In 1994 the United States extended copyright-like protection to live musical performances by adopting 17 U.S. C. §1101, which authorizes civil remedies that are the same as those for copyright infringement, and 18 U.S.C. §2319A, which subjects violators to fines and prison terms. These new statutes, referred to jointly as the "anti-bootlegging statute," led to raids of record stores and "sting" operations aimed at persons involved in the manufacture and distribution of live concert recordings. This Comment argues that the benefit to society of having these live recordings in circulation outweighs the minimal economic damage incurred by the music industry. Furthermore, the music industry has always had the ability to address this perceived problem through non-legal measures, that is by releasing live concert recordings and thereby eliminating the incentives for unauthorized recording and distribution. Therefore, the statute should be repealed. In its place a legal regime should be created that recognizes the presumption that fans and royaltypaying independent record companies have a right to record and distribute recordings of live concert performances.