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Legal info on recording
Mike R.:
Colorado now has the following:
--- Quote ---18-4-604.3. Unlawful recording of a live performance.
Statute text
(1) A person who, without the consent of the owner of the right to record a live performance, records or causes to be recorded the live performance on a phonograph record, compact disc, video disc, wire, tape, film, or other article on which a live performance is recorded with the intent to sell the article on which the live performance is recorded or to cause the same to be sold for profit or to be used to promote the sale of any product commits unlawful recording of a live performance.
(2) In the absence of a written agreement or law to the contrary, the performer or performers of a live performance are presumed to own the rights to record the live performance.
(3) For purposes of this section, a person who is authorized to maintain custody and control of business records that reflect whether the owner of the live performance consented to having the live performance recorded is a competent witness in a proceeding regarding the issue of consent.
(4) Unlawful recording of a live performance is a class 1 misdemeanor.
(5) As used in this section, "live performance" means a recitation, rendering, or playing of a series of images, musical, spoken, or other sounds, or a combination of images and sounds, in an audible sequence.
History
Source: L. 2005: Entire section added, p. 202, § 2, effective July 1.
Annotations
Editor's note: Section 3 of chapter 50, Session Laws of Colorado 2005, provides that the act enacting this section applies to offenses committed on or after July 1, 2005.
--- End quote ---
anodyne33:
18-4-604.3.1 is very poorly worded. If you look closely it doesn't speak on the intent to sell the recording, but intent to sell the device the performance is recorded upon. :P
NOTHINGFAN:
--- Quote from: greenone on January 20, 2005, 12:12:38 PM ---Here's Pennsylvania's statute:
http://members.aol.com/StatutesP4/18PA4116.html
--- Quote ---§ 4116. Copying; recording devices.
[...]
(d.1) Manufacture, sale or rental of a recording of a live performance without consent of the owner.--
1. It shall be unlawful for any person to knowingly manufacture, transport, sell, resell, rent, advertise or offer for sale, resale or rental or cause the manufacture, sale, resale or rental or possess for such purpose or purposes any recording of a live performance with the knowledge that the live performance has been recorded without the consent of the owner.
--- End quote ---
--- End quote ---
Thank you.
Paul:
--- Quote from: dnsacks on April 19, 2005, 11:33:14 AM ---
--- Quote from: daze on April 18, 2005, 11:13:35 PM ---The prosecutor would have the burden of proof to prove guilty beyond a reasonable doubt.
--- End quote ---
Of course -- successful prosecution would be all-but-impossible if a requisite element of the crime could not be proved. However, the issue I'm raising isn't a conviction under the statutes/ordinances/regulations, but rather the hassle and expense that would be involved with "beating" such a conviction.
--- End quote ---
one thing to keep in mind...
copyright is a civil case, not a criminal prosecution.
Civil cases do not require "guilt beyond reasonable doubt". They are a lot easier to win a case/lawsuit. But, that said, I've been in the business of talking copyright law, being a musician & photographer. Copyright claims are not cut & dry.
In photography, the photographer is the copyright holder, the moment he presses the button to release the shutter & captures the image. The only exceptions are, if the photographer was on paid assignment as an employee of a company, taking photos for them. Then, they belong to the employer.
Photographers can also get into trouble (copyright conflict) if they take an image of someone else's copyright work. A few years back, the issue of tattoos on models, where the tattoo is someone else's copyrighted work. IIRC, a famous case was Mike Tyson's facial tattoos, where they were unique & the artist was well known.
So, that begs one to ask, is the recorder/taper the copyright holder, as is the photographer? But, is he then capturing a copyrighted work?
Yes, similarly, it works the same.
Now, to the brass tacks.
To claim a copyright. or trademark infringement, you have to have "damages". You are suing for said damages & what you consider fair compensation, based on either/or, monetary loss to you, or monetary gain by the infringer.
How much money does (in this case) the band lose, by simply you recording them? How much money did you gain? Chances are, most here are not recording to sell, but, let's say that they thought some money was being made by you, or from you.
I knew a guy, who took a picture. It was a portrait. Funny enough, he was watching a blockbuster movie, & saw his portrait in the movie. He showed a few people & people encouraged him, that, he was the copyright holder, & the movie used the image w/o his permission & that the movie obviously made millions of dollars.
Sounds like he has a case & a good one. Likely a big payoff... until, all the explorations of copyright law & damages came into play. He had to prove damages. It didn't hurt his finances, nor his reputation, but, there was the idea of being used in a production for profit medium.
Then, the questions came up, how integral to the movies success was his particular image? What percentage of the movie did the image occupy? How much money was the particular image responsible for contributing to the profits?
Or was in inconsequential?
Ended up, after the lawyer explained all that to him, he realized that he really didn't have much of a case. He could have went to court to sue the studio, but it would have cost him thousands of dollars & probably, the outcome would have been that either he lost, or, the studio would have to go back & remove the frames that included his image.
The image was displayed for about 3-5 seconds & was among a table & wall of about 25 other pictures. It was never shown close-up, nor displayed as of any importance.
So, being a musician, having someone record one of your shows, & maybe trading it to friends, or keeping it to him/herself, there's going to be all that damages thing to prove. They might shell out thousands of dollars & the best they might get, is a copy of the recording from you... which, you'd probably give them if they wanted it anyway.
Now, think of the thousands of people recording your shows...
fanofjam:
--- Quote from: Paul on September 15, 2022, 12:06:24 AM ---
--- Quote from: dnsacks on April 19, 2005, 11:33:14 AM ---
--- Quote from: daze on April 18, 2005, 11:13:35 PM ---The prosecutor would have the burden of proof to prove guilty beyond a reasonable doubt.
--- End quote ---
Of course -- successful prosecution would be all-but-impossible if a requisite element of the crime could not be proved. However, the issue I'm raising isn't a conviction under the statutes/ordinances/regulations, but rather the hassle and expense that would be involved with "beating" such a conviction.
--- End quote ---
one thing to keep in mind...
copyright is a civil case, not a criminal prosecution.
Civil cases do not require "guilt beyond reasonable doubt". They are a lot easier to win a case/lawsuit. But, that said, I've been in the business of talking copyright law, being a musician & photographer. Copyright claims are not cut & dry.
......
So, being a musician, having someone record one of your shows, & maybe trading it to friends, or keeping it to him/herself, there's going to be all that damages thing to prove. They might shell out thousands of dollars & the best they might get, is a copy of the recording from you... which, you'd probably give them if they wanted it anyway.
Now, think of the thousands of people recording your shows...
--- End quote ---
The moral of that story is don't listen to your friends. Everyone seems to break life down into financial terms all the time. Sue McDonalds if you burn yourself on a hot cup of coffee. Sue a homeowner because you tripped over something on his property. I believe in personal accountability so I've been over that bullshit forever. Just because you can, doesn't mean you should.
With respect to recording, I've never taken money for my recordings even when its been offered and never will. Once in a while, I've accepted a ticket in exchange for recording but more often than not I've rejected that as well because I like supporting a band on the road. Over the years, a few bands have sold my recordings on theie website to make a few bucks. My reward is the honor that they appreciate my work enough to do so. That said, I realize some people have studios and record for a living...I'm not passing judgement on them...I expect to be paid when I work my given profession. But taping is my passion and hobby. Monetizing it runs counter to my purpose for doing it. I know this adds nothing to the strict legal discussion, but it's germane to the motivations I (and I think most of us here on ts.com) have for taping.
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