## Facts

- Michael L. Agee owned the copyright in a sound recording by the group “Mass Production.”
- Paramount produced a segment for the syndicated television program “Hard Copy” and used portions of Agee’s sound recording synchronized with video footage.
- Paramount obtained a license for the underlying musical composition but did not obtain a license for the sound recording.
- Paramount copied the sound recording onto the program’s tape soundtrack, creating an audio-visual work containing the duplicated sounds, and distributed the segment to 129 television stations.
- The television stations made copies of the program (e.g., by recording it for later airing) and broadcast the program to the public.
- Agee sued Paramount and the television stations for copyright infringement and also asserted Lanham Act and state-law unfair competition claims.
- The district court granted summary judgment against Agee on the copyright claim and dismissed the Lanham Act and unfair competition claims; Agee appealed.

## Issues

1. Whether incorporating a copyrighted sound recording into the soundtrack of a taped television program constitutes an infringing “reproduction” under 17 U.S.C. §§ 106(1) and 114(b).
2. Whether the television stations’ copies made to facilitate broadcast are exempt under the “ephemeral recording” provision, 17 U.S.C. § 112(a).
3. Whether allegations that the unauthorized use suggested endorsement or affiliation state a claim under the Lanham Act or state unfair competition law.

## Decision

- The Second Circuit affirmed in part, reversed in part, and remanded.
- Paramount infringed Agee’s reproduction right by copying the sound recording onto the program’s tape soundtrack; summary judgment for Paramount on the copyright claim was reversed.
- The television stations’ copies were protected by the § 112(a) ephemeral recording exemption; summary judgment for the stations was affirmed.
- Dismissal of the Lanham Act and unfair competition claims was affirmed.

## Legal Principles

- Fixing a copyrighted sound recording in the soundtrack of a taped television production is a “reproduction” that implicates the sound recording owner’s exclusive rights under §§ 106(1) and 114(b).
- Licensing the musical composition does not authorize copying of the separate sound recording; a sound recording license is required when the actual recorded sounds are duplicated.
- Section 112(a) can exempt a broadcaster’s temporary, transmission-related copies made to facilitate authorized broadcasts, even if the copies embody copyrighted material.
- Claims framed as false endorsement or affiliation do not proceed under the Lanham Act or unfair competition law when the alleged wrong is, in substance, unauthorized copying governed by copyright.

## Conclusion

The court held that copying a copyrighted sound recording into a taped television program’s soundtrack infringes the reproduction right, but that broadcasters who make temporary copies solely to effect authorized transmissions may be shielded by the § 112(a) ephemeral recording exemption; non-copyright claims based on alleged endorsement were properly dismissed.


Agee v. Paramount Commc’ns, Inc., 59 F.3d 317 (2d Cir. 1995)