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ARSCLIST  March 2011

ARSCLIST March 2011

Subject:

Re: Thank You for responses to Unpublished...getting sued

From:

adam kolkman <[log in to unmask]>

Reply-To:

Association for Recorded Sound Discussion List <[log in to unmask]>

Date:

Wed, 23 Mar 2011 12:51:07 -0400

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (155 lines)

Dear all,

I was wondering, especially in the case of orphaned recordings, what damages
can the owner sue for if he shows up after you republish the recording? How
are royalties determined?

I know they can sue for actual damages and some sort of theoretical or
potential damages. Can anyone explain these non-"actual" type of damages to
me? What if the recordings are not music but other types of recorded sound?
Do royalties still apply? Do other types of damages (invasion of privacy)
apply? How are they calculated?

Sorry for the laundry list of questions!

Adam Kolkman
University of Michigan
Dept. of Slavic Languages and LIteratures

On Wed, Mar 23, 2011 at 12:29 PM, Tom Diamant <[log in to unmask]>wrote:

> RE: Thank You for responses to Unpublished Sound Recordings query
>
> If you have "deep pockets" you need to be careful. There are people who
> buy,
> or obtain (sometimes in very shady deals) rights to recordings or songs
> because they know they can sue people. We were involved in an suit a few
> years ago, where we didn't know who published or wrote a song, so we paid
> no
> royalties on it, yet kept a record of what we owed in case someone did
> appear. Normally in these cases, if someone appears who owns the rights,
> you
> produce the accounting and pay what is owed. In this case we were sued by
> an
> attorney over it who had "purchased" the rights, allegedly at the
> songwriters deathbed, for very little, because he smelled money.
>
> We owed less than $200 in royalties, yet he was insisting we go to court
> (in
> a city on the other side of the country.) He knew that we didn't have the
> money to go to court over it so between what he was able to extract out of
> us in a "settlement" and our own attorneys' fees, it cost us around
> $10,000.
> It was a rare event in the traditional music field but it did happen.
>
> If you release music for public sales, you are in the "record biz" and are
> subject to every aspect of it.
>
> Tom Diamant
> Arhoolie Records
>
> -----Original Message-----
> From: Association for Recorded Sound Discussion List
> [mailto:[log in to unmask]] On Behalf Of Tom Fine
> Sent: Wednesday, March 23, 2011 8:09 AM
> To: [log in to unmask]
> Subject: Re: [ARSCLIST] Thank You for responses to Unpublished Sound
> Recordings query
>
> Just to be clear, I didn't comment on the law, I commented on the defacto
> practice in the
> marketplace today. Take a look at the numerous US-based companies who
> reissue "golden era" classical
> titles on CDR media, generally "mastered" from old duped tapes or LPs. The
> megaglomerates are very
> well aware that they exist, but choose not to go after them. That's the
> defacto way of things. In
> many cases, the niche market is too small to justify the lawyers. Plus, if
> a
> megaglomerate risked
> the bad publicity and spent the money shutting down some little guy who is
> publishing what the
> megaglomerate themself lock in their vault and refuse to put in print, they
> still have the issue of
> the likes of Naxos, the Spanish jazz reissuers and numerous other companies
> operating in places with
> lighter-than-US copyright laws and selling the same material all over the
> world (although,
> technically, not in the US, but this is easily bypassed as well if someone
> really wants to listen to
> the material -- in fact the Spanish jazz CDs are sold on Amazon).
>
> As in most cases, the defacto "street law" is very different from the
> dejure
> "book law." But, the
> fact is, for anyone based in the US, you are at risk when you do this
> because the copyright owner
> has the very heavy weight of the law on his side. Again, in the defacto
> world, if you're not mining
> a pot of gold, for instance putting something on YouTube (which has a
> policy
> of taking down anything
> they get copyright complaints about), it's generally not worth the owner's
> time to pay someone to
> bring the hammer down on you. The hammer is probably more likely to drop if
> you are profiting from
> the copyright violation, but see the paragraph above.
>
> Finally, again just to be clear, I'm not endorsing these companies that
> violate US copyright laws,
> especially in regard to recordings made in America by Americans. We have
> laws here and they need to
> be changed, but for now they are the laws. The laws right now dis-serve the
> American people because
> they put the full weight of legitimacy and enforcement behind those who
> would deny access and keep
> things locked in vaults rather than those who would serve the market and
> the
> culture by keeping
> recordings in print.
>
> -- Tom Fine
>
> ----- Original Message -----
> From: "Bob Olhsson" <[log in to unmask]>
> To: <[log in to unmask]>
> Sent: Wednesday, March 23, 2011 10:10 AM
> Subject: Re: [ARSCLIST] Thank You for responses to Unpublished Sound
> Recordings query
>
>
> > -----Original Message-----
> > From Tom Fine: "The way I've noticed that this works in the actual
> > marketplace today is that people put stuff out, either for download or
> sales
> > as CD's. They have a website. If they get a lawyer letter, the material
> > comes down and I assume that in some cases, the people who hired the
> lawyer
> > get paid some small damages... "
> >
> > It is a crime to make a copy of anything outside the public domain
> without
> > permission unless there is a specific legal exemption such as personal
> use
> > copies of commercially released music recordings.
> >
> > This risk is a lot like the sampling issue in hip hop. If you remain
> under
> > the radar you probably won't get caught or face more than a slap on the
> > wrist. On the other hand,  something going viral on the web could force
> you
> > into bankruptcy because the copyright owner has the right to charge you
> > anything they like for each copy that got distributed and it would be
> very
> > hard to argue that you weren't the only source of an unpublished
> recording.
> > There are also criminal penalties and, in the case of unpublished works,
> > invasion of privacy issues.
> >
> > Bob Olhsson Audio Mastery, Nashville TN
> > Mastering, Audio for Picture, Mix Evaluation and Quality Control
> > Over 40 years making people sound better than they ever imagined!
> > 615.562.4346 http://www.bobolhsson.com http://audiomastery.com
> >
>

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