Topic: Legal info on recording

[greenone]

Ok...hopefully this thread can become a repository for individual states' laws on what we do - what the laws are, what our rights are, etc. Mostly I'm hoping to include advice from people who actually know what they're talking about (i.e. lawyers or those who have studied this kind of stuff), or from people willing to do the footwork and track down links to their particular state's legal code and post the pertinent information.


BIG EDIT: The original information (that not between these two lines) may no longer apply. A new statute was passed in 2006 that appears to supersede the code below. The full code can be seen here now:

http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002319---A000-.html

The upshot is that penalties are MUCH worse...but now the all-important clause about "commercial advantage or private financial gain" has been inserted, and the clause about state laws having precedence over federal law has been removed. So bottom line - it appears that not-for-profit recording is technically legal even if not authorized by the artist, though you may have difficulty proving that you have no financial motives in a timely fashion that will enable you to continue your recording if the authorities decide to stop you.


In general, the national law is this:

http://www4.law.cornell.edu/uscode/17/1101.html

The penalties are detailed here:
http://www4.law.cornell.edu/uscode/17/502.html
http://www4.law.cornell.edu/uscode/17/503.html
http://www4.law.cornell.edu/uscode/17/504.html
http://www4.law.cornell.edu/uscode/17/505.html

Briefly, recording and trading without the artist's consent is a violation of Federal law and brings with it the penalties that come from copyright infringement (actual damages and profits, or statutory damages between $200 and $150,000 plus possible additional damages as well as legal/court fees).

HOWEVER, the very last part of section 1101 says that state laws are not pre-empted. Whether this means that federal laws do not apply if there's a state law, or if they apply in ADDITION to the states' laws, is not clear. Hence my hope that lawyers will help us out here.

The general state party line is, if the artist says it's ok, you're not breaking the law. If the artist doesn't say it's ok, you're usually not breaking the law as long as it's for non-commercial use. Some states go so far as to say that distributing it isn't ok but owning it for personal use is permissible; these are noted in the posts for that particular state.

--Dave

ps. Eventually my aim is to get one post for each state on this thread, except for states whose laws I can't find, which will be listed here (but deleted if I or someone else finds them): Vermont and Texas don't appear to have anything having to do with piracy or recordings at all.
Alaska, Colorado, Georgia, Hawaii, Iowa, Ohio, Minnesota, Maine, Nebraska, South Dakota and Utah have "sound recording" statutes that deal with piracy (copying commercial recordings) and not specifically with live recordings (though a bill has been introduced in Colorado). If this is the case, the Federal laws likely apply, so bear that in mind if you ever get caught stealthing in these states!

pps. Links are provided for those who wish to read the whole text for a particular state. I've quoted the relevant parts for our purposes and included any notes that make that state more or less restrictive than others.

[greenone]

Here's a link to the New York state laws. Most significant here is that the venue can ask for your equipment, and if you refuse, they can ask you to leave, but must offer to refund your ticket price.

http://www.solorb.com/dat-heads/digests/V6.400/D424#Msg16

  s 31.01. Unauthorized photographs and sound recordings of performances

   2. No person shall take any photograph or make any sound recording of any performance presented in a theatre without having first obtained the written consent of the management to do so. [...]
   3. If any person admitted or seeking admission to a theatre in which a performance is to be or is being presented, attempts to bring into, or brings into such theatre any photographic or sound recording device without having first obtained the written consent of the management to do so, such management shall have the right to request and obtain possession of such photographic or sound recording device until the conclusion of such performance.  The management shall give a receipt for such device, and shall be liable for any damage to such device or loss or theft of such device while in their care.
   4. If any person admitted or seeking admission to a theatre in which a performance is to be or is being presented, refuses or fails to give or surrender possession of any photographic or sound recording device which such person has brought into or attempts to bring into such theatre without having first obtained the written consent of the management to do so, then the management shall have the right to remove such person therefrom or refuse admission thereto to such person, and shall thereupon
offer to refund and, unless such offer is refused, refund to such person the price paid by such person for admission to such theatre.  If such person refuses to leave such theatre after having been informed by the management thereof that possession of any photographic or sound recording device in such theatre without the written consent of the management is prohibited, then such person shall be deemed to be remaining in the theatre unlawfully within the meaning of subdivision five of section 140.00 and section 140.05 of the penal law, and in addition, the management shall have the right to maintain an action in trespass and for punitive damages against such person.
   5. The criminal penalties [i.e., trespass-DE] and civil remedies provided by this section shall be without force or effect unless the management of the theatre shall have posted
signs at the box office and at or near the audience entrance to the portion of the theatre wherein the performance is to be presented and printed in any program which may be furnished to the audience for such performance, stating in substance as follows:

                                      WARNING

   The photographing or sound recording of any performance or the possession of any device for such photographing or sound recording inside this theatre, without the written permission of the management is prohibited by law.  Offenders may be ejected
and liable for damages and other lawful remedies.

[greenone]

Here's the only citation I could find in Massachusetts general law. Of note here is that the recording is "for commercial advantage or private financial gain", or that it is advertised for such purposes.

http://www.mass.gov/legis/laws/mgl/266-143b.htm

Chapter 266: Section 143B Unauthorized reproduction and sale of live performances

  Section 143B. Whoever for commercial advantage or private financial gain records or causes to be recorded a live performance with knowledge that such recording is without the consent of the owner, or advertises, sells, rents, transports or causes to be advertised, sold, rented or transported, or possesses for any of such purposes, a recording of a live performance with the knowledge that the live performance was recorded without the consent of the owner, shall be punished as provided in section 143E.

[greenone]

New Hampshire state law appears very lenient in the matter:

http://www.gencourt.state.nh.us/rsa/html/xxxi/352-a/352-a-2.htm

    352-A:2 Acts Prohibited. – It shall be unlawful for any person to:
    I. Knowingly transfer or cause to be transferred to any article on which sounds are recorded, directly or indirectly by any means, with the intent to sell such article or cause it to be sold or to be used for profit:
[...]
       (b) Any performance, whether live before an audience or transmitted by radio, television or other means, without the prior express written consent of the performer.
[...]
    III. This section does not apply to:
[...]
       (b) Any person who transfers, or causes to be transferred, any such sounds intended for or in connection with:
[...]
          (3) home or personal use, without involving compensation or profit.

Basically, as long as you're doing it for  personal use, you're in the clear, even regardless of the artist's knowledge or permission.

[greenone]

Here's what I found in Rhode Island's general laws:

http://www.rilin.state.ri.us/statutes/title6/6%2D13.1/6%2D13.1%2D15.htm

   § 6-13.1-15  Piracy of recordings. –
[...]
   (b) Unless exempt under subsection (d), it is unlawful for any person, firm, partnership, corporation, or association knowingly to:

   (2) Transfer or cause to be transferred any performance, whether live before an audience or transmitted by wire or through the air by radio or television, onto any article; or

   (3) Sell, distribute, circulate, offer for sale, distribution, or circulation, possess for the purpose of sale, distribution, or circulation, or cause to be sold, distributed, circulated, offered for sale, distribution, or circulation, or possessed for sale, distribution, or circulation, any article on which sounds or performances have been transferred without the consent of the person who owns the master article from which the sounds are derived or the right to record the performance.
[...]
   (d) This section does not apply to any person who transfers or causes to be transferred any sounds or images intended for or in connection with radio or television broadcast transmission or related uses, for archival purposes or solely for the personal use of the person transferring or causing the transfer and without any compensation being derived by the person from the transfer.

Basically the same as New Hampshire, except "personal use" is defined as being only for the person doing the recording. What's a bit odd here is that point 3 implies that it's ok to sell, distribute or circulate something with the artist's permission, but point 2 says it's not ok to record ANY performance. I would guess that with permission is implied but it's a bit unclear.

[greenone]

From the New Jersey Code of Criminal Justice, section 2C:21-21:

http://lis.njleg.state.nj.us/cgi-bin/om_isapi.dll?clientID=195678&Depth=2&depth=2&expandheadings=on&headingswithhits=on&hitsperheading=on&infobase=statutes.nfo&record={1809}&softpage=Document42

    c. A person commits an offense who:
[...]
    (3) Knowingly manufactures or transfers, directly or indirectly by any means, or records or fixes a sound recording or audiovisual work, with the intent to sell or distribute for commercial advantage or private financial gain, a live performance with the knowledge that the live performance has been recorded or fixed without the consent of the owner of the live performance.

[...]
    f. The provisions of this act shall not apply to:
[...]
    (2) Any person who, in his own home, for his own personal use, and without deriving any profit, transfers any sounds or images recorded on a sound recording or audiovisual work.

[greenone]

Maryland:

http://mlis.state.md.us/asp/statutes_respond_2009.asp?article=gcr&section=7-308&Extension=HTML

§ 7-308.
Criminal Law
[...]
      (c)      Except as otherwise provided in this section, a person may not knowingly deliver, offer for delivery, possess for delivery, cause to be delivered, cause to be offered for delivery, or cause to be possessed for delivery a recorded article or device:
[...]
            (2)      embodying a performance without the consent of the performer.

"Delivery" is defined earlier in the statute as "to sell, rent, distribute, or circulate." This would seem to indicate that even trading stealth tapes without the artist's permission is illegal in Maryland.

[macdaddy]

nice work, greenone.

any info re: CA ..?

[thegreatgumbino]

Looks like good info to add to the taper's manual being worked on around here.  It would be sweet to have the laws for all the states.  Comments?

[BobW]

New Jersey represent... This link is actually to a bill to modify Title 2C:21-21, aka the New Jersey Anti-Piracy Act, but the non-underlined parts detail the law as it currently stands. 2C:21-21 does appear on the NJ Legislature web site, but the link is way too long and may be client-dependent, so I'm using this one instead.

http://www.njleg.state.nj.us/2004/Bills/S2000/1515_I1.HTM

In NJ, the consent of the artist is important, unlike New Hampshire.

I find it ironic that Bob Dylan sang, "In New Jersey anything is legal, as long as you don't get caught."

Thanks for the info.
Is verbal O.K. defensable ?  If you get it on tape ?   

[sleepypedro]

damon, dan estrin compiled the laws for every state a few years back and posted to datheads.  check it out

[greenone]

All I could find was the New York laws that are linked above...any chance you've got a link?

[greenone]

Ok...I'm back on the job.

The appropriate entry in California's Penal Code is 653u, which can be found here:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=639-653.1

653u.  (a) Any person who records or masters or causes to be
recorded or mastered on any article with the intent to sell for
commercial advantage or private financial gain, the sounds of a live
performance with the knowledge that the sounds thereon have been
recorded or mastered without the consent of the owner of the sounds
of  the live performance is guilty of a public offense punishable as
provided in subdivisions (d) and (e).
   (b) In the absence of a written agreement or operation of law to
the contrary, the performer or performers of the sounds of a live
performance shall be presumed to own the right to record or master
those sounds.

The usual caveats apply here - recordings are ok with the artist's permission and if they aren't for commercial purposes.

653aa (a bit further up the page) is California's P2P law, which is interesting in that it mentions that distributing recordings which the artist has okayed, is not punishable by law, specifically section (c)(2).

[greenone]

Here's Pennsylvania's statute:

link]http://weblinks.westlaw.com/result/Default.aspx?cite=UUID(NDBDC46F034-2D11DA8A989-F4EECDB8638)&db=1000262&findtype=VQ&fn=_top&ifm=NotSet&rlt=CLID_FQRLT3568151813612&rp=%2FSearch%2Fdefault.wl&rs=WEBL8.11&service=Find&spa=pac-1000&sr=TC&vr=2.0]link

§ 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.

[greenone]

Here's Ohio:

http://codes.ohio.gov/orc/1333.52

This appears to be more of a record piracy statute than a live performance recording, but it's all I could find.

Interestingly, the last line states that the law does not apply to "(a)ny person who transcribes sounds for personal use" and appears to be regardless of whether the artist has consented or not.