Klarinet Archive - Posting 000044.txt from 2004/05

From: "Film & Music Promotion Management" <FilmPromotion@-----.net>
Subj: RE: [kl] Ownership/copyright
Date: Mon, 3 May 2004 09:29:59 -0400

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To: <klarinet@-----.org>
From: "Benjamin Maas" <benmaas@-----.com>
Subject: RE: [kl] Ownership/copyright
Message-ID: <004101c430ba$c3a2e760$3901a8c0@CIRCLE2>

I'm not a lawyer and I don't play one on TV, but your question brings
up
several interesting points. This is a subject that certain types of
lawyers
can devote a career to and make much $$ arguing about.

The quick answer to your question is "it depends"

Who made the recording and under what conditions was it made? If you
made
the recording of your performance, then you own the recording rights
to
it.
However, you still may need to license it for public release (just
because
you own the recording rights doesn't mean that you have copyright on
the
music).

If somebody else made the recording, it becomes a bit more "grey."
Technically, the person that made the recording owns it, unless it was
made
for hire in which case, the person that hired to make the recording
owns
it.
If an orchestra hires an engineer to record their performance and you
happen
to solo on it, chances are the orchestra is the one that owns the
recording
rights.

What it comes down to is that MP3.com wants to make sure that they
aren't
illegally offering something for download that is copyrighted. You
are
basically guarantying that you own the rights to the recording and you
would
be allowed to release it. Just like if you were releasing a
commercial
CD.

Gee... Where is Kevin Fay when we need him?

--Ben

Benjamin Maas
Fifth Circle Audio
Los Angeles, CA
http://www.fifthcircle.com

> -----Original Message-----
> From: Bryan Crumpler [mailto:crumpletox@-----.com]
>
>
> Question: When you perform a solo w/ an orchestra... who is
> the copyright
> holder for that performance/sound-recording when one is made?
> Is it the
> composer, orchestra, soloist, publisher, combination, who?
>
> Just came across mp3.com.au and thought about uploading some
> stuff... BUT...
> had second thoughts when I read the artist agreement... for example:
>
> "You warrant and represent that:
> (i) you exclusively own or control all right, title and
> interest in the
> copyright in the Tracks (including but not limited to the
> right to broadcast
> and transmit the Tracks in intangible form to the public by any
means
> whatsoever); and... "
>
> Unless it's, like, a recording for a record label, I don't
> clearly see who
> the "exclusive" owner would be for such a situation.
>
> Bryan

----------------------------------------------------

Here's the bottom line:

The Orchestra owns the recording. You would have to get a release from
the Orchestra's board who would need a release from all of the
musicians involved on the recording to be able to legally broadcast
it. You only own the recording rights for your own playing, not the
others involved on the recording.

But here's the reality of it:

Mp3.com.au is not Mp3.com at all. They are in no way affiliated with
the "real" mp3.com which was sold and bought by CNET.com (that the
evil empire Vivendi owned previously).

All the .au is would be another site trying to capitalize on the mp3
name in the URL. Plus, I would bet the farm that they would let you
put it up without even asking about it if they knew that you were the
soloist. (not that it is legal, but they I'll bet the farm aren't
going to question you on it). Also, the most that would happen if
there were a question would be that they would ask you to remove it.

My brother-in-law is one of the very top Copyright Lawyers in the US
for Entertainment. He represented A&M, Geffen, Interscope in the
Napster Lawsuit and Al Franken's publisher in his book suit. I've
asked him that question before.

David Blumberg

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