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Here is John Marks' reply:

John Marks to me
show details 1:44 PM (3 hours ago) Reply

Hi-

That’s pretty much it.

And not only the “artist” creating a “work for hire.” The PA system guy was
there on a license from the venue owner—he had access to the sound waves
only because of the system he had for that evening rented to the venue.
There may be an aspect of “unjust enrichment” as between the venue and the
recordist.

There are other possible nips and tucks.

Of course, in the absence of a contract covering it, it is speculative which
“rights” would be revived.

And it would be a sinkhole of time to find out who the stakeholders are.
There was a hockey rink in Providence called the Rhode Island Auditorium.
IIRC, Cream’s last live US concert was held there circa 1968. If the sound
contractor had run a tape... IIRC, that venue had been on the ropes for
years, and it closed and was torn down shortly thereafter.

Take, for example, a modern case. Bruce Springsteen and a promoter and
Madison Square Garden (who may or may not also be the promoter) arrange for
Springsteen to perform, and people pay money to get in. I have no first-hand
knowledge, but I would expect that the contract(s) covering all that would
have compensation increments to the venue depending whether there was also a
live broadcast, or a concert film for DVD being made, on the theory that the
brand “Madison Square Garden” has market value to consumers outside the NYC
metro area, and that if the promoter of the broadcast was going to benefit
from that leverage, so would the venue.

The Warwick Musical Theater has been closed for a few years, but the family
is still around. I bet they’d kick up a fuss if a live concert recording saw
commercial release without getting a release from them. Do you think George
Wein would sit still if a PA board recording of a Newport Jazz Festival show
popped up? BTW, JVC has pulled the plug on Newport—the future is in doubt,
the State is looking for bailout bux... .

I represented Boris Goldovsky (believe it or not) in negotiations with
Texaco and the Met over exploitation of his archive of Texaco Saturday
Afternoon  opera “color commentaries.”
Texaco was cool with that and would have been happy to let their logo be
used in connection with CD releases. The Met took the position that the
venue had rights that arose simply from its brand recognition, and that just
about every conceivable use that even mentioned the fact that these talks
were part of broadcasts from the Met would have been a palming off... . Of
course what they wanted was some sort of deal. I am pretty sure they would
not have sued dear old Mr. Goldovsky, or anyone he gave permission to. My
response was, hey, great, fine, __you__ put them all out on CD! But they
didn’t want to risk capital, of course.

In the last analysis, it looked like the kind of people who would be
“natural” customers probably seemed to think they knew it all anyway, which
left the educational and library market, and that is hard to get into. In
the end, someone formed a non-profit and did a “greatest hits” on a
shoestring.

As a former Governor of RI once noted, any idiot with $120 can file a
lawsuit... .

ATB,
JM

(clark)

On Mon, Mar 23, 2009 at 12:48 PM, Richard L. Hess
<[log in to unmask]>wrote:

> At 12:25 PM 2009-03-23, Clark Johnsen wrote:
>
>  Moreover, what of the legal implications? My friend John Marks, himself a
>> fine recordist and label owner (JMR Records) and prolific writer on audio
>> topics (Stereophile) -- and an attorney! --  sent me this to share:
>>
>> Fascinating.
>>
>> <snip>
>>
>> In my hypothetical, I'd expect the venue to say, we are involuntarily your
>> partner, you thief, but equal partners nonetheless...
>>
>
> Hi, Clark,
>
> Could you ask John Marks the legal theory behind this?
>
> Where does the venue own anything, unless they consider themselves the
> promoter and the artist performing a "work for hire"?
>
> Thanks!
>
>
> Cheers,
>
> Richard
>
> Richard L. Hess                   email: [log in to unmask]
> Aurora, Ontario, Canada       (905) 713 6733     1-877-TAPE-FIX
> Detailed contact information: http://www.richardhess.com/tape/contact.htm
> Quality tape transfers -- even from hard-to-play tapes.
>