## Facts

- Jean Martignon operated “Midnight Records” in New York City and allegedly sold unauthorized recordings of live musical performances through a store, catalog, and the Internet.
- The federal government indicted Martignon under 18 U.S.C. § 2319A, which criminalizes, without a performer’s consent, fixing a live musical performance and reproducing, distributing, selling, renting, or trafficking in such recordings.
- Section 2319A contains no express time limit on the protection it affords against unauthorized fixation and trafficking.
- Martignon moved to dismiss the indictment, arguing the statute exceeded Congress’s power under the Copyright Clause because live performances are not “Writings” of “Authors” and because the statute effectively grants protection beyond “limited Times.”
- The district court agreed, held § 2319A facially unconstitutional under the Copyright Clause, and dismissed the indictment.
- The United States appealed the dismissal to the Second Circuit.

## Issues

1. Whether 18 U.S.C. § 2319A is a valid exercise of Congress’s Commerce Clause power regulating economic activity affecting interstate commerce.
2. Whether the Copyright Clause’s requirements (including “limited Times” and “Writings”/“Authors”) restrict Congress from using the Commerce Clause to criminalize bootlegging of live musical performances.

## Decision

- The Second Circuit reversed the dismissal and remanded for further proceedings.
- The court upheld § 2319A as a valid exercise of Congress’s Commerce Clause authority.
- The court concluded that § 2319A does not fall within the “ambit” of the Copyright Clause because it does not create copyright-type property rights in performers.
- Because the statute was sustained under the Commerce Clause and was not treated as a copyright law, the Copyright Clause’s internal limitations did not apply.

## Legal Principles

- Congress may regulate and prohibit commercial bootlegging activity under the Commerce Clause when the regulated conduct is economic and substantially affects interstate commerce.
- The Copyright Clause does not categorically preclude Congress from addressing expression-related markets through other Article I powers; its internal limits bind Congress when Congress legislates within the Copyright Clause’s domain.
- A criminal statute that prohibits unauthorized fixation and commercial trafficking, without granting performers exclusive, transferable rights in expression, may be treated as regulatory rather than as a copyright law for constitutional analysis.
- When a statute is outside the Copyright Clause’s domain, the “limited Times” requirement does not constrain Congress’s use of another enumerated power to enact that statute.

## Conclusion

The Second Circuit reinstated the indictment, holding that the federal anti-bootlegging statute is constitutional as a Commerce Clause regulation of commercial conduct and is not subject to the Copyright Clause’s “limited Times” and related constraints because it does not grant performers copyright-type property rights.


United States v. Martignon, 492 F.3d 140 (2d Cir. 2007)