Another Band is Selling Our Jams

Dear Rich: If someone (call them Band 2) came to a band's show (call them Band 1) and Band 2 secretly recorded a six minute jam song which Band 1 never wrote down, nor because of it's nature never laid down in a studio etc. or otherwise recorded, and Band 2 made a song out of the jam and copyrighted it and sold downloads on their website, is that legal because the jam song was never "fixed" by Band 1? It depends on what you mean by "made a song out of the jam." If Band 2 used samples or sounds from the recording, then Band 2 would be liable under anti-bootlegging laws, described below. If they didn't copy (sample) any of the recording, then read on.
Anti-bootlegging law. It's true that copyright only protects "fixed" performances -- works that are considered "sufficiently permanent" to be perceived and communicated. And the "fixer" -- the party who records it with authorization -- is often presumed to be the author or co-author of the sound recording copyright (although not the author of the underlying song composition). In addition, in 1994, a new law was adopted -- anti-bootlegging legislation that prohibits someone from making unauthorized recordings of live performances and transmitting, duplicating, or "trafficking" in the sounds on that recording (see 17 USC 1101).
Did Band 2 violate the anti-bootlegging law? We know of no cases similar to yours -- where someone makes an unauthorized bootleg recording and then constructs a new recording (without using any sounds from the bootleg) that is similar to the unauthorized bootleg recording. We doubt whether this constitutes a violation of the anti-bootlegging law because Band 2 is not distributing the unauthorized recording to the public -- they're distributing their own recording. We think any claim regarding infringement of sound recording copyrights is going to be difficult to make. We think you'd be better off focusing on infringement of song composition copyright. (You can read about the differences between the two copyrights here).
The song composition copyright. If Band 2 registered the song composition at the U.S. Copyright Office (and you can check the records here), and Band 2  listed themselves as authors of the composition, that may amount to fraud on the Copyright Office. (Band 2 can't be the authors if they've pilfered the song from Band 1). We're also not clear about how much of this is an unprotectable "jam" and how much is a protectable "composition." That is, if you are registering a song, you can stop others from using some combination of elements such as bass parts, chord structure, lyrics and melody lines. You may not be able to stop the use of other combinations or elements, such as harmonies, drum parts, or common chord structure such as a standard 12 bar blues progression. Assuming Band 2 took enough to claim an infringement of a song by Band 1, we'd recommend using the original live bootleg recording (which you state you have a copy of) to register the work at the Copyright Office and then pursue a claim of infringement of the song copyright. Because the facts on this are so unusual, we'd welcome any reader comments.