Topic: Legal info on recording

[dmbfan36_23]

OK, wouldn't there be a loop-hole that we do not do this for commercial or private financial gain? I"m no lawyer, but to me there is plenty of proof that I and the majority of us here don't do it for money. Just curious.

I thought that too, until I read the very last sentence, the key being the "OR":

  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.

[The Kilted Taper]

I thought that too, until I read the very last sentence, the key being the "OR":

  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.

Continue to read that

or posses for ANY OF SUCH PURPOSES

Meaning the purposes of commercial or private financial gain???

[dmbfan36_23]

Whoooooops... I think you're right.. *phew*...  ok stealth taping is back on in MA! ;-)

[admkrk]

Florida:

another long one

(2)(a)  It is unlawful:

[...]

3.  Knowingly and willfully and without the consent of the performer, to transfer to or cause to be transferred to any phonograph record, disk, wire, tape, film, or other article any performance, whether live before an audience or transmitted by wire or through the air by radio or television, with the intent to sell, or cause to be sold, or to use or cause to be used for profit through public performance or to be used to promote the sale of any product or such article onto which such performance is so transferred.

i'm no lawer, but, as long as your tape isn't up for sale(by you or anyone else), there should be no problems.

doesn't mean there, or anywere else for that matter, won't try to squeeze ya.

+t for the links

[greenone]

i'm no lawer, but, as long as your tape isn't up for sale(by you or anyone else), there should be no problems.

doesn't mean there, or anywere else for that matter, won't try to squeeze ya.

Exactly - that's the impression I get from the majority of the statutes posted here. There are very few states that make the actual act of recording, or possessing, or trading a recording illegal; most of them require intent to profit from the recording.

[§†∑∫åµÞ≥¥]

What about recording a cover song for an album? (ie: if I record a cover song with my guitar, burn it to CD as part of an album, then sell it on a website) Do I need to get permission from the songwriter? or just acknowledge the copyrights in the liner notes? or ?? Has anyone ever done/researched this?

[dnsacks]

i'm no lawer, but, as long as your tape isn't up for sale(by you or anyone else), there should be no problems.

doesn't mean there, or anywere else for that matter, won't try to squeeze ya.

Exactly - that's the impression I get from the majority of the statutes posted here. There are very few states that make the actual act of recording, or possessing, or trading a recording illegal; most of them require intent to profit from the recording.

Here's the problem though.  If a law criminalizes recording for profit and johnny law sees you recording, he's not going to wait 'till you're done and ask you to prove that you were, in fact, recording for profit so he can charge you under the statute.  Instead, he's going to presume you are recording for profit and charge you under the statute then and there.  After being charged, you have the dubious task of proving to the prosecutor/court/etc. that you were not recording for profit and thus not in violation of the statute.  Once you hire a lawyer to defend you, appear in court, etc. you'll likely wish that you were recording for profit to pay the bills.

S

[admkrk]

i'm no lawer, but, as long as your tape isn't up for sale(by you or anyone else), there should be no problems.

doesn't mean there, or anywere else for that matter, won't try to squeeze ya.

Exactly - that's the impression I get from the majority of the statutes posted here. There are very few states that make the actual act of recording, or possessing, or trading a recording illegal; most of them require intent to profit from the recording.

Here's the problem though.  If a law criminalizes recording for profit and johnny law sees you recording, he's not going to wait 'till you're done and ask you to prove that you were, in fact, recording for profit so he can charge you under the statute.  Instead, he's going to presume you are recording for profit and charge you under the statute then and there.  After being charged, you have the dubious task of proving to the prosecutor/court/etc. that you were not recording for profit and thus not in violation of the statute.  Once you hire a lawyer to defend you, appear in court, etc. you'll likely wish that you were recording for profit to pay the bills.

S

good point.    but "inosent until prooven guilty" should be able to be defended by any public defender, no problems.  still waists your time and all.

[dnsacks]

The prosecutor would have the burden of proof to prove guilty beyond a reasonable doubt.

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. 

[Genghis Cougar Mellen Khan]

(1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation

Is there anyone in here that can translate Lawyerese?

Would my master be considered fixing the sounds or sounds of a live musical performance in a copy or phonorecord?

Phonorecord

A term used in legal definitions to refer to physical recordings of songs, such as vinyl LPs, cassette tapes, and compact discs.

Technically, a material object in which sounds are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or communicated, either directly or with the aid of a machine or device (U.S. Copyright Act of 1976, Section 101).

[Mike R.]

Colorado now has the following:

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.

[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. 

[NOTHINGFAN]

Here's Pennsylvania's statute:

http://members.aol.com/StatutesP4/18PA4116.html

§ 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.

Thank you.

[Paul]

The prosecutor would have the burden of proof to prove guilty beyond a reasonable doubt.

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. 

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]

The prosecutor would have the burden of proof to prove guilty beyond a reasonable doubt.

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. 

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...

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.