The Wrong Box: <i>U.S. v. Martignon</i> Not a Copyright Case

Judge Harold Baer, Jr.'s decision declared unconstitutional the federal anti-bootlegging statute set out in 18 United States Code '2319A (“the Act”). In essence, the Act declares it a criminal offense when, without the consent of the performer(s) involved, one knowingly and for purposes of commercial advantage or private financial gain 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. It is also an offense to transmit to the public without authorization the sounds or images of a live musical performance or traffic in unauthorized recordings of such. (A sister provision in 17 U.S.C. '1101 providing for civil liability for such bootlegging was not at issue in the case.) A federal grand jury indicted Martignon on one count of violating the criminal provision by selling “unauthorized recordings of live performances by certain musical artists through his business.” Martignon opinion (hereinafter “Op.”) at 2.

Martignon attacked the indictment on several fronts, arguing that the law exceeded the scope of the Copyright Clause of the U.S. Constitution, that it violated the free speech protections of the First Amendment, and that it offended “basic tenets of federalism.” The court did not reach the latter two arguments because it struck the law down under the Copyright Clause (Article I, '8, cl. 8: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors … the exclusive Right to their respective Writings. … “)