In my Copyright Law class, a student held the opinion that an ice sculpture might qualify as “fixed” (as defined by the Copyright Act), depending on the climate. Of course, logically this makes sense. It would be difficult to argue that an ice sculpture placed in a sub-freezing room would not be a “fixed tangible medium of expression.” The Copyright Act does not say “permanent.” (and if it did, we would have quite an existential conundrum on our hands, for what truly is “permanent”?).
Understanding that the test is not “permanence,” the question still nagged at me. Is an ice sculpture in a yard at a Texas Fourth of July Barbecue sufficiently “fixed” as to be worthy of Copyright Protection?
17 U.S.C. § 101 says that a work is “fixed” when it is “sufficiently permanent or stable to permit it to be perceived, reproduced, or cotherwise communicated for a period of more than transitory duration.”
I have not found many cases nor commentators offering an opinion on the “ice sculpture” issue — probably because it has virtually no practical application. A lawsuit over a copied ice sculpture would be “smoking gun” material – and it is doubtful that there would be much financially in play.
Nevertheless, one’s pursuit of “useless” knowledge can often illuminate the useful. McCarthy has this to say about the transitory medium conundrum:
It is a matter of degree exactly how long is a ‘period of more than transitory duration.’ The House Report … indicates that a live and not simultaneously recorded television broadcast is not ‘fixed,’ because it is merely flickering dots on a cathode ray tube. Cases at the limit, such as chalk notes on a blackboard, a sand castle, or an ice sculpture, are harder to classify. McCarthy’s Desk Encyclopedia of Intellectual Property at 178.
McCarthy then quotes the legislative history of the Act:
[I]t makes no difference what the form, manner or medium of fixation may be — whether it is in words, numbers, notes, sounds, pictures or any other graphic of symbolic indicia, whether embodied in a physical object in written, printed, photographic, sculptural, punch, magnetic, or other stable form, and whether it is capable for perception directly or by means of any machine or device “now known or later developed.”
[T]he definition of “fixation” would exclude from the concept purely evanescent or transient reproductions such as those projected briefly on a screen, shown electronically on a television… or captured momentarily in the ‘memory’ of a computer. Id. (citing
H.R. No. 1476, 94th Cong., 2nd Sess. (1976) at 52, reprinted in  U.S. Code Cong. & Admin. News 5659, 5665).
Also, consider this excellent articulation of the underlying theory:
Although an initial controversy existed as to whether statutory fixation occurred in digital media, it is clearer now that even entry into temporary computer memory “fixes” a work of authorship. FN78: See, e.g., Robert A. Gorman & Jane C. Ginsburg, Copyright: Cases and Materials 85-88 (6th ed. 2002) (“Despite the 1976 House Report’s suggestion that “transient reproductions … captured momentarily in the “memory’ of a computer’ should not be deemed “fixed,’ subsequent legislation appears to adopt the principle that entry of a work into the random access memory of a computer makes a “copy’ (and thus a “fixation’) of the work.”) (citations omitted). But see CoStar Group, Inc. v. LoopNet, Inc, 373 F.3d 544, 550-51 (4th Cir. 2004) (“When an electronic infrastructure is designed and managed as a conduit of information and data that connects users over the Internet, the owner and manager of the conduit hardly “copies’ the information and data in the sense that it fixes a copy in its system of more than transitory duration.”). W. Joss Nichols, Painting Through Pixels: The Case for a Copyright in Videogame Play, 30 Colum. J.L. & Arts 101. 112 (and accompanying note 78) (2007)
It appears that an ice sculpture (regardless of how long it is expected to last), or even words on frosted glass, or a sand castle built below the high water mark would all be “fixed” as that term is used in Section 101. C.f. Metropolitan Government of Nashville and Davidson County Public Art Guidelines at 30 (found here) (opining that a melting ice sculpture would be exempt from VARA due to the “inherent nature” of the medium).
So… what about skywriting?
(Note, if you are a student in my copyright law class and wish to comment on this, make sure you return to the class blog to do so).