Copy Right Law and Music Sample Question

[glamacchia]

– If this is a redundant post I apologize, I did not see exactly what I am seeking in a search of posts here or on several other sights but then again perhaps I didn’t use the correct search criteria.


I am looking for some case law or a specific section of the CFR Title 17 of the United States Code regarding the legality of the following.
Here is what HMG Music group llc is doing . . . if any one can reference the legality with a section in the CFR or case law. . read on



1] We are selling the only known copy of VERY obscure one off recordings that were either:

a] Recorded by Hilly Michaels (Warner Bros 1980’s) when he was asked to record the live rehearsals at his brown stone that he was playing drums on with various artists (think the neighbor hood kids recorded themselves in Dad’s garage in 1950, all parties know they are being recorded) 40 years later OMG!!! You have a recording of John Lennon!!!!

b] given as a gift or given at the end of the day to Mr. Michaels from the studio he hired as he was the producer, arranger, song writer for the project

2]
We are NOT selling multiple copies. We are not copying parts of the complete tapes and selling bits and pieces. We are selling the entire recording contained on the one tape (and only copy we know of) and a digitally re-mastered CD-r transfer of the tape completed under the guidance of Mr. Michaels.


3] We are putting a sound bite link from EBay or Sotheby’s to My Space or You tube or what have you so that buyers can hear that this is bona fide recording and hear the audio quality of what we have and realize that this is not something you can find on the Internet.

4] One of the business partners in the llc is Hilly Michaels (Think in 1972 you grabbed an LP of the band presently known as - - - at a club, bought Steve a beer and complemented him on the show and said hey would sign this? Thanks! You guys are really good! 30 years later digging through your attic what do you find? That singed LP by Steven Tyler that you bought 36 years ago, whose right to listen to or transfer the right to listen to the one copy you bought to another, was conveyed to you buy that cash purchase in 1972 under US copyright laws in place then (and now)

All of the above is of no concern for works that are copyrighted to Hilly – we can throw up as long of or as short of a sample. Hell he can put his entire library up there and say HAVE AT IT Merry Xmas. FREE FREE FREE.

The Question
Can we put a sample of the tape(s) / song (s) Hilly was given, or was asked to record or was hired to work on, on the internet for buyres to sample before they buy it? Some of these songs we don’t know to whom or if they are even copy written; maybe the holder is a deceased person at this point; the holder may be the past client that hired the studio, producer and musicians and are no longer in business.

Can you and how do you make available a sample of a copyrighted work that you have the only known copy of that you are selling?


Ciao,
Due, Skruem and Howe

[MIDI Life Crisis]

Not knowing who might have a copyright in the work your are distributing is not a defense against infringement. In fact, the only viable defenses are not applicable in your case (common source material for your and the oppositions work; and earlier copyright deposit with LOC for the same work).

You be able to legally sell the master tape but you will have to prove ownership with a a paper trail if the owner surfaces. You cannot legally make CD copies of the tape and sell those nor post samples online. Giving it away for free is also not a defense. It is a violation of the copyright holders "right to control copies."

This is not a legal site or service and I am not an attorney. If you want case law, you will have to look it up or hire a lawyer. However you do it, it is going to cost you. You may never get sued and it is possible the authors 1) Will never know; 2) Are dead; 3) Don't care. There are lots of reasons to sue or not to sue in an intellectual property case (again, this is something to ask your lawyer.)

I do have a lot of personal experience in this area. In a few cases, people copied my music as part of silent films I had scored, with the defense that the films were public domain so they assumed the music was also. Wrong. The statutory damages for innocent infringement START at $30k. You suspect there might be a copyright and as such, if brought to task, would not be considered innocent infringers. Statutory damages for willful infringement start at $150k. Both instances include all income (not just profit) from the use of the work.

So the quick answer is "no, you can't." You should talk to an experienced intellectual property lawyer experienced in copyright litigation before you do anything further.

[glamacchia]

Hey Mid
Was a suit brought against any parties on your silent film music matter that was lifted? From the artist's (yours) stand point how did it go?
I try to avoid attorneys - they aren't always the sharpest tool in the shed or most honest. . . Sight case law and the statute, tell me it is OK and then find out he forgot to buy tickets to the judges wife's bake sale. Great, go play anther round together.



The real question is how can we place a snippet or short sample of a tape we own on line to be heard so a single buyer knows it is bona fide?
- which I still can't find any case law on! yet. The 7 second sample length for Tone-Loce comes to mind.
To my knowledge and what I have read it is not against the law to sell the record or tape I bought or that was a gift to me for a profit or loss regardless of how rare it is . . if any one knows something different LET ME KNOW!

Last time I asked and researched when I was hired to denoise and transfer a VERY old Edison cylinderical recording you (the owner of the record) can do it yourself or hire to have that done and you ( the owner) are allowed to make a copy for yourself that is playable on your own personal equipment. My Edison Talk Box player skips when I go skiing so I load in into my iPod
Again if some one knows that NOT to be true in the US let me know as I still occasionally transfer old rare LONG out of print 78's for the owner!

We aren't distributing copies just selling the one and only gift / tape / record / or reel to reel we have.

Be Well

[MIDI Life Crisis]

You won't find case law on that because it would be something in the briefs, not in the cause of action, per se. Do you even know how to look up case law and trial issues?

Frankly, I've had bad to great attorneys. They're just like people (almost!) Seriously, they are just people and are prone to politics. And it is a close society in the courts. Get over it if you are going to go there.

FInally, this is NOT the place to get legal advice. Period. If you don;t want to hire an expert, then post the damn thing and take your chances. Even if someone were to give you the answer you want, that doesn't make it correct. Watch:

Sure go ahead, post it wherever you want to. Sell it and copy it often. Make a big profit and don't worry about the legal owners.

See, that was easy. And I am glad to say that is exactly what infringers of my work did. I will not reveal ANYTHING about those cases or dispositions except to say I won them all (over a dozen now). What to know more? Look up the cases? DOn;t know how? Get a lawyer.

See how this works?

[glamacchia]

Hope fully this final post will help others find answers and links that I found if they too run into this dilemma. Despite being told this is not the proper forum to discuss music business and copy right laws on, yet there are two forums below this dealing with: Copy Right. ~ What do you pros think of Satriani vs. Coldplay suit?~ and ~ Copyright Law? Are chords entitled to a songwriter's ?~ . . . so exercise your right to not read then.

The opinions expressed here are just that. Meaningless opinions. Were noted I listed the source of my text. Keep in mind I am on both sides of this fence, getting royalties, keeping my works safe, keeping my clients’ works safe and selling rare one off recordings.

If any one has other references or links please send them.


Here are some of the resources I found.

http://chillingeffects.org

http://www.copyright.gov/title17/92chap1.html (Chap 1-9 pertain to use music gurus)

http://news.cnet.com/8301-10784_3-9929922-7.html

http://louis.law.olemiss.edu/

Verbal communications with a few trade and patent lawyers who owe me and general case law findings (For those in different time zones this is also known as decisional law or judicial precedent or the general term for the principles and rules of law set forth in judicial opinions from courts of law; you know transcripts, briefs, opinions.) Louis Law is one sight we use on the East coast to find case law.




[1]
Yes you can sell a CD, record tape, book, video or other copyrighted work that you bought or were gifted or made. You don’t need permission from the copyright holder(s).

CFR Title 17
§ 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord42

(a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.


[2]
The owner of a phonorecrod can also make a copy for their own personal use. Specifically in Title 17 you can read that in keeping up with technology if the means to play the original recording are vanishing, you can make a copy so that you can continue to enjoy the work you purchased well into the future. I did not find any time limitations of how long the copy can last or how many times you can make a copy for your own personal use. Beyond that you can hire some one to make a personal copy for you if you don’t have the means. And then there is a lengthy section dealing with libraries, not for profit, critics, educational use, reviews etc making copies.



[3] FAIR USE - http://chillingeffects.org
When a copyright holder sues a user of the work for infringement, the user may argue in defense that the use was not infringement but "fair use." Under the fair use doctrine, it is not an infringement to use the copyrighted works of another in some circumstances, such as for commentary, criticism, news reporting, or educational use. The defense generally depends on a case-by-case judgment of the facts.

Fair use is codified at Section 107 of the Copyright Act, which gives a non-exclusive set of four factors courts will consider in deciding whether a use is fair or not. These factors are

1. the purpose and character of the use,
2. the nature of the copyrighted work,
3. the amount and substantiality of the portion used, and
4. the effect of the use on the potential market for or value of the copyrighted work.

Of course, even with these factors, it is problematic and often unyielding to try to predict what uses a court will deem fair.

The language used by Congress in Title 17, Section 107 specifically lists criticism, comment, news reporting, teaching, scholarship, and research? as examples of uses that might be protected under fair use. However, this list is non-exhaustive, and therefore a use not covered in one of the categories could nonetheless be successfully defended as a fair use. Conversely, not every use that falls within the listed categories will necessarily be found by a court to be fair. For example, not every use of another's work for research or educational purposes will be held to be a fair use. See Encyclopaedia Britannica Educational Corp. v. Crooks, 542 F.Supp. 1156 (W.D.N.Y.1982)




[4] CAN YOU POST A SNIPPET ON LINE of Copy righted Material?
I am still researching but the simple work around if you are selling a RARE one off recording is to email the snippet 1:1 to any prospective buyers verses posting on line. Even if posted on line the first slap would be a cease and desist order by the copy right holder– Fine we will pull it down, sides it is already sold by then.

My gut feelings are it is covered under the Fair Use doctrine. Additionally the sample snippet is NOT being placed on line as a source of financial gain.

Below is the second counter suite stemming from original filed by Sony against a mom who posted a video on You tube of her 13 month old son dancing to the artist formerly known as Prince’s song Lets go Crazy. Seems that Ms. Lenz is a patent atty… she decided to fight the first suit field against her. It recently was decided, (fall 2008) Sony lost – she can put a video of her son dancing to Let’s go crazy under the fair use doctrine. Prince had some good arguments though. I agree with a lot of what Prince said. Specifics of why Ms. Lenz won under the fair use doctrine may my be the length, the quality, the content was not solely the copy righted work.. not sure, I am still researching that.

To quote Stewie on MySpace – “Yeah ya know I got a MySpace page yeah it’s really rad, I took a bunch of pictures, you can see them in my MySpace page, along with my favorite songs and movies that people have created that I use to express my individualism.”



http://news.cnet.com/8301-10784_3-9929922-7.html

On April 8, U.S. District Judge Jeremy Fogel threw out Lenz's lawsuit against Universal, saying the argument that Universal was misusing its copyright was weak--and that the case wasn't really akin to the Diebold wrongful-use-of-the-DMCA lawsuit. Here's what Fogel wrote:

Diebold is distinguishable based on its facts; although it included a takedown of hundreds of emails, the defendant failed to identify any specific emails containing copyrighted content, and it appeared to acknowledge that at least some of the emails were subject to the fair use doctrine. Here, it is undisputed that the song "Let's Go Crazy" is copyrighted, and Universal does not concede that the posting is a fair use... There must be a showing of a knowing misrepresentation on the part of the copyright owner. Lenz fails to allege facts from which such a misrepresentation may be inferred. Lenz also fails to allege why her use of "Let's Go Crazy" was a "self-evident" fair use. Accordingly, Lenz's first claim will be dismissed, with leave to amend.


Copyright 2009 Due, Scruem and Howe

[MIDI Life Crisis]

Go ahead, make me a liar Just don't believe everything thing you think. You reiterated everything I said. You have the right to sell the PHYSICAL recording. You don't have the right make and sell copies or distribute and broadcast it (post it.)

>The opinions expressed here are just that. Meaningless opinions.

Including THAT one. BTW, you're welcome. Now go make a killing...

[hausboy]

It was the previous incarnation of Napster that is to blame. They gave the songs away for free via the internet that's why companies like Apple with its I-Tunes are given a hard time by record companies. Why buy a bootleg when you can download through a P2P site for free. The aduience is sick of paying high prices for CDs therefore I-Tunes & E-Music $.69-$1.29 per song is moe attractive.
The record companies & some artists in my opinion have not learned how to exploit the internet to sell songs. Case in point AC/DC doesn't want to sell per single they want the whole album sold as a full body of work. The world has changed. However I purchased an R&B album some years to like a three out of like sixteen songs. For some artists or many should focus on making five or six good solid songs than twenty audio crap songs. Not everyone can do waht AC/DC can do but if I was a gambling man not all their fans like all their songs may only enjoy a few here & there.
People are also scared of new technology. What you can do in Reason, DP, Cubase, BPM, PT & so forth is almost awe inspiring. For the price of a Mac you get Garage Band. Guitar boxes come in the form of GuitarRig & ReValver. Plug ins from Audio Damage & many VST/AU are free. That imtimdates some musicians who didn't have such technology when they were coming up. I've a feeling Barry Gordy could done more if he had a computer running DP along with the analogue gear. No telling what he could've achieved. Bands like Black Sabbath, the Beatles & even the Stylistics most likely would of have grabbed computers to assist in the production. Bands with similar thinking as AC/DC are worried they won't make a living off singles than a full length LPs. In way I agree with their sentiments but at the same time I also recognise such a action could hamper one's ability to adapt in web music delivery habitat. I worked with a woman who bought an I-Pod Shuffle & gave away her collection of CDs & tapes just to put all her songs on that player. Portability is important think to the 1980's with the debut of the Sony Walkman.

[mikehalloran]

The short answer to all your questions is no, you cannot unless the item pre-dates 1923.

The exception is if you can prove that you own the rights to the recording in question. It doesn't appear that you do or you wouldn't be asking the way that you are. Only the rights holder can authorize copies of a recording. Fair use and the home recording act are not issues since you intend to sell copies of a recording.

[MIDI Life Crisis]

Blame "The Mouse."