## Facts

- John Forward, a record collector and music enthusiast, befriended George Thorogood after seeing the band perform in Boston in 1975.
- The band had been performing since 1973 but had not yet released an album.
- Using contacts at Rounder Records, Forward sought to help the band obtain a recording contract.
- In 1976, Forward arranged and paid for two studio sessions to create demo recordings intended to attract Rounder Records.
- Forward requested certain songs for the sessions, but his involvement otherwise was limited to organizing and financing the recordings.
- A Rounder Records principal attended the second session at Forward’s invitation; Rounder signed the band the following day.
- The band permitted Forward to keep the physical demo tapes for personal enjoyment, and he retained possession thereafter.
- The band’s first Rounder album was released in 1977 and thanked Forward in acknowledgments; the band later achieved commercial success.
- In 1988, Forward announced he intended to sell the 1976 tapes for commercial release; the band objected, asserting the demos were primitive compared to later work and that release would be harmful.

## Issues

1. Who owned the copyright in the 1976 unpublished demo sound recordings: Forward (who arranged, financed, and possessed the tapes) or the band (whose performances were recorded)?
2. Whether Forward’s financing/organization of the sessions and possession of the tapes gave him the right to commercially exploit the recordings over the band’s objection.
3. Whether injunctive relief barring Forward from commercial use was proper once ownership was determined.

## Decision

- The First Circuit affirmed the district court’s judgment after a bench trial.
- The court held the band owned the copyright in the sound recordings.
- The court held Forward did not gain copyright ownership by paying for and arranging the sessions or by possessing the physical tapes.
- The injunction prohibiting Forward from commercially exploiting the recordings was upheld.

## Legal Principles

- Copyright ownership in a sound recording ordinarily follows authorship of the recorded expressive content; performers whose performances are fixed are authors absent a valid transfer or work-made-for-hire relationship.
- Financial or logistical support (including arranging, funding, and selecting songs to record) does not, without more, create authorship or ownership of copyright in the resulting recording.
- Ownership of the physical medium embodying a recording does not confer ownership of the copyright or a right to publish, distribute, or commercially release the recorded work.
- Where a party lacks copyright ownership, a court may enjoin unauthorized commercial exploitation of the recordings.

## Conclusion

The court concluded that the band’s recorded performances constituted the protected authorship in the demo tapes, while Forward’s role as organizer, financier, and custodian of the physical tapes did not confer copyright or commercial release rights; accordingly, the band could block release and the injunction against Forward was affirmed.


Forward v. Thorogood, 985 F.2d 604 (1st Cir. 1993)