Audiovisual recordings of live concerts are not covered by the Copyright Act’s section 115 compulsory licenses

U.S. Federal


United States

In 2002, William Sagan acquired a trove of live concert recordings that included performances by The Rolling Stones, The Who, the Grateful Dead, and many others. In 2006, Sagan made the recordings available online through digital download and streaming services offered for a fee. In 2015, a collection of music publishers (the plaintiff) sued Sagan (the defendant) under the Copyright Act, alleging that Sagan infringed the publishers' copyrights in 197 musical works that were performed in the live concert recordings.

The United States District Court for the Southern District of New York held that Sagan did not have a valid license for the works and therefore infringed each of the musical works.

Argument on appeal

On appeal in ABKCO Music, Inc. v. Sagan, Nos. 20-3816(L), 20-4020(CON), 20-4099(XAP) (2nd Cir. 2022), Sagan argued that the musical works that were reproduced and distributed in audiovisual recordings (i.e. live concerts) fell within the scope of the Copyright Act’s section 115 compulsory licenses.


The Second Circuit Court of Appeals ruled that the audiovisual recordings did not fall under the scope of section 115 compulsory licenses and therefore Sagan infringed the copyrights of each musical work included in an audiovisual recording, including recordings of live concerts (at 17).

Section 115 compulsory licenses

The Second Circuit explained that section 115 of the Copyright Act allows a person to obtain a compulsory license to make and distribute “phonorecords" of a published musical work. Whether Section 115 licenses cover audiovisual recordings hinges on whether those types of recordings fall within the Copyright Act's definition of "phonorecords" (at 14).

The Copyright Act defines phonorecords as:

               [M]aterial objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed . . ., and from                which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The                term "phonorecords" includes the material object in which the sounds are first fixed.

Concert recordings are not phonorecords

The Second Circuit agreed with the district court’s holding that the definition of phonorecords excluded all audiovisual recordings, including recordings of live concerts. Therefore, Sagan’s audiovisual recordings were not covered by section 115 compulsory licenses. As a result, his use of the works infringed their copyrights.

November 22, 2022
ABKCO Music, Inc. v. Sagan, Nos. 20-3816(L), 20-4020(CON), 20-4099(XAP) (2nd Cir. 2022)
Author: Carli Kadish
Federal Courts