Copyright and performance rights in an online video world

In a world of ubiquitous videos, performance rights become the next intellectual property frontier. People have been performing for one another for centuries. But suddenly courts are grappling with performance copyright claims, including two quite unusual cases that led to decisions by two of the country's most prominent judges. A copyrighted work must be fixed in a tangible medium of expression, and live performances are dynamic and ephemeral, not fixed. But there's an Internet twist -- everyone has video cameras these days, and the resulting videos frequently end up online. In this way, performances often are fixed (usually by someone else's video), and those videos often are made widely available. Under these circumstances, it is not surprising that two quite different cases recently reached federal appellate courts, alleging violations of performance rights. In both Garcia v. Google and Conrad v. AM Community Credit Union, it was the act of posting a video on the Internet that concerned the plaintiffs.