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This is a brief survey of the criminal laws in California, Illinois, Michigan, New York, and Virginia governing (1) the unauthorized reproduction of sound recordings, and (2) the recording of live performances without authorization (“bootlegging”).
A. California
(1) Unauthorized reproduction of sound recordings
A person is guilty of a criminal offense if he:
Knowingly and willfully transfers or causes to be transferred any sounds that have been recorded on a phonograph record, disc, wire, tape, film or other article on which sounds are recorded, with intent to sell or cause to be sold, or to use or cause to be used for commercial advantage or private financial gain through public performance, the article on which the sounds are so transferred, without the consent of the owner.1
The law defines “owner” as the person who owns the original fixation, known as the “master recording.”2
It is also a criminal offense to transport “for monetary or like consideration within this state” any copy of a sound recording “with the knowledge that the sounds thereon have been so transferred without the consent of the owner.”3 In addition, it is a criminal offense to offer such a recording for sale or rental, or to sell, rent, or possess it for such purposes, “with knowledge that the sounds thereon have been so transferred without the consent of the owner.”4
There is an exemption for “any person engaged in radio or television broadcasting who transfers, or causes to be transferred” the sounds from an unauthorized copy of a sound recording (other than from the soundtrack of a motion picture) “intended for, or in connection with broadcast transmission or related uses, or for archival purposes.”5
There is an exemption for not-for-profit educational institutions and for federal or state governmental entities whose primary purpose is “advancement of the public’s knowledge and the dissemination of information regarding America’s musical cultural heritage,” as set forth in the institution’s charter, bylaws, or similar document.6 However, the exemption does not relieve the institution of any obligation to compensate the owners of sound recordings. It must first make “a good faith effort to identify and locate the owner or owners of the sound recordings to be transferred” and determine that they cannot be located.7 It is required to make continuing efforts to locate the owners and to keep on file a record of those efforts.8
(2) Antibootlegging laws
Recording a live performance without the owner’s consent is a crime under California law:
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.…9
It is also a criminal offense to transport “for monetary or other consideration within this state” any copy of a sound recording containing 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 live performance.”10 In addition, it is a criminal offense to offer such a recording for sale or rental, or to sell, rent, or possess it for such purposes, “with knowledge that the sounds thereon have been so recorded or mastered without the consent of the owner of the sounds of a live performance.”11
Performers are presumed to own the right to record their live performances “[i]n the absence of a written agreement or operation of law to the contrary.”12 The statute defines “live performance” as “the recitation, rendering, or playing of a series of musical, spoken, or other sounds in any audible sequence thereof.”13 An “article containing sounds of a live performance”14 refers both to original unauthorized recordings and to partial or full copies of such recordings.15
The law includes an exemption for persons or entities:
… engaged in radio or television broadcasting or cablecasting who record or fix the sounds of a live performance for, or in connection with, broadcast or cable transmission and related uses in educational television or radio programs, for archival purposes, or for news programs or purposes if the recordation or master recording is not commercially distributed independent of the broadcast or cablecast by or through the broadcasting or cablecasting entity to subscribers of the general public.16
On its face, the exemption does not cover the transmission of a bootleg recording made by a third party. Instead, it protects broadcasters who record live performances for specific purposes, including “for archival purposes,” as long as the recording will not be commercially distributed for other purposes.17
(3) Other
Section 653w of California’s criminal law punishes the “failure to disclose the origin of a recording or audiovisual work” if a person “for commercial advantage or private financial gain … knowingly advertises or offers for sale or resale, or sells or resells, or causes the rental, sale or resale, or rents, or manufactures, or possesses for these purposes, any recording or audiovisual work, the cover, box, jacket, or label of which does not clearly and conspicuously disclose the actual true name and address of the manufacturer thereof and the name of the actual author, artist, performer, producer, programmer, or group.”18
B. Illinois
(1) Unauthorized reproduction of sound recordings
It is a criminal offense when someone:
Intentionally, knowingly or recklessly transfers or causes to be transferred without the consent of the owner, any sounds or images recorded on any sound or audiovisual recording with the purpose of selling or causing to be sold, or using or causing to be used for profit the article to which such sounds or recordings of sound are transferred.19
It is also a criminal offense “[i]ntentionally, knowingly or recklessly” to sell, offer or advertise for sale, use, or cause to be used for profit any sound or audiovisual recording described above without the consent of the owner.20Illinois has another statute precluding the same activities with respect to “unidentified” sound recordings.21 However, that provision is notable because it can be triggered not only by intentional, knowing, or reckless activities (selling, offering for sale, etc.) but also by negligence.22
In addition, it is a criminal offense when someone
Intentionally, knowingly or recklessly offers or makes available for a fee, rental or any other form of compensation, directly or indirectly, any equipment or machinery for the purpose of use by another to reproduce or transfer, without the consent of the owner, any sounds or images recorded on any sound or audio visual recording to another sound or audio visual recording . . . 23
There is an exception to allow “any person engaged in the business of radio or television broadcasting” to transfer “any sounds (other than from the sound track of a motion picture) solely for the purpose of broadcast transmission.”24 There is no specific exception for not-for-profit, educational, or archival uses.
(2) Antibootlegging laws
The Illinois criminal code provides that a person or entity commits “unlawful use of recorded sounds or images” when he:
Intentionally, knowingly or recklessly transfers or causes to be transferred without the consent of the owner, any live performance with the purpose of selling or causing to be sold, or using or causing to be used for profit the sound or audio visual recording to which the performance is transferred.25
The statute defines “owner” for this purpose as “the person who owns the rights to record or authorize the recording of a live performance.”26
C. Michigan
(1) Unauthorized reproduction of sound recordings
Michigan’s record piracy statute prohibits a person from transferring (or causing to be transferred), without the consent of the owner, a sound recording, “with the intent to sell or cause to be sold for profit or used to promote the sale of a product, the article on which the sound is so transferred.”27 It also prohibits knowingly advertising or selling unauthorized copies.28
Michigan has a separate provision dealing with unauthorized duplication of sound recordings and the sale, transfer, advertising and possession of such recordings for these purposes for profit.29
The law contains an exemption for persons who transfer sound:
(a) Intended for or in connection with radio or television broadcast transmission or related uses.
(b) For archival, library, or educational purposes.
(c) 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.30
No cases have been decided under or interpret this portion of Michigan’s code.
(2) Antibootlegging laws
Michigan’s criminal law prohibits a person from transferring “a live performance onto a recording” or from transferring the sounds on that recording to another recording, if it is done “without the consent of the owner for commercial advantage or private financial gain.”31 The “owner” is the person who owns the sounds fixed in the master recording or the person who owns the rights to record or authorize the recording of a live performance.32 The law also prohibits the sale, rental, distribution, transport, or possession for these purposes of a recording known to be made in violation of the preceding provision.33
There is an exception for “[a] person engaged in radio or television broadcasting or cablecasting who transfers or causes to be transferred sounds intended for, or in connection with, a broadcast or cable transmission or related use.”34 There is also an exception for recordings “transferred solely for the personal use of the person transferring the recording” and from which the person making the transfer derives no compensation.35
No relevant cases have been decided under this statute.
(3) Other
It is also a criminal offense to “[s]ell, rent, distribute, transport” or to possess for these purposes a recording with knowledge that it does not include the true name and address of the manufacturer.36
D. New York
(1) Unauthorized reproduction of sound recordings New York penal law has several provisions dealing with unauthorized sound recordings. It is a criminal offense if someone:
1. knowingly, and without the consent of the owner, transfers or causes to be transferred any sound recording, with the intent to rent or sell, or cause to be rented or sold for profit, or used to promote the sale of any product, such article to which such recording was transferred, or
2. transports within this state, for commercial advantage or private financial gain, a recording, knowing that the sounds have been reproduced or transferred without the consent of the owner.37
It is also a criminal offense to knowingly advertise or offer for sale, rental, or distribution, or to sell, rent, distribute or possess for any of these purposes, “any recording that has been produced or transferred without the consent of the owner.”38
There are exceptions in the law for (1) “any broadcaster who, in connection with or as part of a radio, television, or cable broadcast transmission, or for the purpose of archival preservation, transfers any such recorded sounds or images,” and (2) for “any person who transfers such sounds or images for personal use, and without profit for such transfer.”39 There are no statutory definitions nor is there any case law that defines the terms “broadcaster” or “archival preservation” in the context of this section.
(2) Antibootlegging laws
New York penal law provides criminal liability for a person who:
[K]nowingly, and without the consent of the performer, records or fixes or causes to be recorded or fixed on a recording a performance, with the intent to sell or rent or cause to be sold or rented such recording, or with the intent to use such recording to promote the sale of any product; or when he knowingly possesses, transports or advertises, for purposes of sale, resale or rental or sells, resells, rents or offers for rental, sale or resale, any recording that the person knows has been produced in violation of this section.40
The law defines “performer” as “the person or persons appearing in a performance” and defines “performance” as “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” that may be perceived “live before an audience or transmitted by wire or through the air by radio or television.”41 The exceptions for broadcasters and for personal use also apply to bootleg recordings.42
(3) Other
It is also a criminal offense to fail to disclose the origin of a recording. This occurs when someone, for commercial advantage or private financial gain, knowingly advertises or offers for sale or rental, or sells, rents, or possesses for such purposes, a recording whose cover or label does not clearly disclose the actual name and address of the manufacturer and the name of the performer or principal artist.43
E. Virginia
(1) Unauthorized reproduction of sound recordings44
(2) Antibootlegging laws
Virginia law provides that it is unlawful to:
Knowingly transfer or cause to be transferred, directly or indirectly by any means, any sounds at a live concert or any sounds recorded on a phonograph record, disc, wire, tape, film, videocassette, or other article now known or later developed on which sounds are recorded, with the intent to sell, rent or cause to be sold or rented, or to be used for profit through public performance, such article on which sounds are so transferred, without consent of the owner.45
It is also an offense, for commercial advantage or private financial gain, to “manufacture, distribute, transport or wholesale, or cause to be manufactured, distributed, transported or sold as wholesale, or possess for such purposes any article with the knowledge that the sounds are so transferred, without consent of the owner.”46 It is also a violation to knowingly sell, rent, cause to be sold or rented, or possess for these purposes “any recorded device that has been produced, manufactured, distributed, or acquired in violation of” the above provisions.47
The “owner” of the recording is defined as the person who owns the sounds fixed on the master recording, or the person who owns the rights “to record or authorize the recording of a live performance.”48
There is an exception for “any person engaged in radio or television broadcasting who transfers, or causes to be transferred, any such sounds … intended for, or in connection with broadcast or telecast transmission or related uses, or for archival purposes.”49 There is no specific exception for not-for-profit use. There are two citing references to this section.50
With respect to bootlegging, this provision is perhaps more limited than those in other states because it applies only to “a live concert.” However, unlike some other provisions it explicitly includes “public performance” as a prohibited use.
(3) Other
The law requires that all recorded devices sold, rented, transferred, or possessed for these purposes by any manufacturer, distributor, or merchant “contain on [their] packaging the true name and address of the manufacturer.”51
FOOTNOTES
This is an appendix to Copyright and Related Issues Relevant to Digital Preservation and Dissemination of Unpublished Pre-1972 Sound Recordings by Libraries and Archives © 2008 June M. Besek, Kernochan Center for Law, Media and the Arts, Columbia Law School.
1 Cal. Penal Code § 653h (a)(1) (West 2007). See Goldstein v. California, 412 U.S. 546 (1973) (concluding that state protection of pre-1972 sound recordings was not preempted by federal copyright law).
Nothing in this section shall be construed to relieve an institution or entity of its contractual or other obligation to compensate the owners of sound recordings to be transferred. In order to continue the exemption permitted by this subdivision, the institution or entity shall make continuing efforts to locate such owners and shall make an annual public notice of the fact of the transfers in newspapers of general circulation serving the jurisdictions where the owners were incorporated or doing business at the time of initial affixations. The institution or entity shall keep on file a record of the efforts made to locate such owners for inspection by appropriate governmental agencies. Id.
9 Cal. Penal Code § 653u (a) (West 2007).
17 The only reported case uncovered citing section 653s, Stoner v. eBay, Inc., 56 U.S.P.Q. 2d 1852 (Cal. Super. Ct. 2000), deals with the question of Internet service provider immunity under the federal Communications Decency Act, 47 U.S.C. § 230(c)(1) (2000). In that case, defendant eBay was found immune from liability for the sale by third parties of bootleg recordings through its online auction site because it was not an information content provider with respect to the description of auctioned goods. 56 U.S.P.Q. 2d at 1853.
18 Cal. Penal Code § 653w (a) (West 2007). Michigan and New York have similar provisions. Mich. Comp. Laws Ann. § 752.1053 (West 2007); N.Y. Penal Law § 275.35 (McKinney 2006).
19 720 Ill. Comp. Stat. Ann. 5/16-7 (a)(1) (West 2007).
20Id. § 5/16-7 (a)(2). See People v. Williams, 876 N.E.2d 235 (Ill. App. 2007) (holding criminal record piracy law as applied to copyrighted sound recordings preempted by federal copyright law but finding no preemption as to § 5/16-8).
22See People v. Zakarian, 460 N.E.2d 422, 428 (Ill. App. Ct.1984), overruled in part on other grounds by People v. Perry, 864 N.E.2d 196 (Ill. 2007).
27 Mich. Comp. Laws Ann. § 752.782 (West 2004).
29Id. §§ 752.782-83. This section applies only to pre-1972 sound recordings that were not protected by federal copyright law. Id. § 752.784.
31 Mich. Comp. Laws Ann. § 752.1052 (1)(a)-(b). Subsection 752.1052 (b), criminalizing the transfer of sounds from one recording to another without consent of the owner, does not apply to recordings initially fixed after 1972. § 752.1052 (1)(b)(i).
36Id. §§ 752.1052 (1)(d), 752.1053.
37 N.Y. Penal Law § 275.05 (McKinney 2007); see also § 275.10.
44 In Virginia, both unauthorized reproduction of sound recordings and antibootlegging activities are covered by the same statute.
45 Va. Code Ann. § 59.1-41.2(1) (2007).
50 Milteer v. Commonwealth, 595 S.E.2d 275 (Va. 2004) (court affirmed conviction of defendant for knowingly possessing pirated videocassettes for the purpose of selling them); McLaughlin v. Commonwealth, 629 S.E.2d 724 (Va. App. 2006) (the presence of CDs with blurry labels and thin packaging in front passenger seat did not constitute probable cause to search defendant’s car during a routine traffic stop. The court determined that “a CD’s homemade appearance is not enough to warrant a person of reasonable caution to believe that it is contraband.” Id. at 728.).
51 Va. Code Ann. § 59.1-41.4 (2007).
