infringement of intellectual property

Subject: infringement of intellectual property
From: Thomas the Rhymer
Date: 01 Aug 04 - 03:42 PM

When a person presents new material in a live encounter, how does he/she protect the ownership of the intellectual property contained therein... when real time digital recorders can copy so effectively without being seen?

Then, when the recorded material makes it to the internet, who can protect the artist from theft, and or copyright infringement?

Worst of all, how do you sue someone for 'defamation of character' for putting only the unflattering parts of a performance recorded without permission or acknowledgement out into the cyberworld?

Are the unacknowledged recordings made of casual public performances legal? ...and if so, why?

I guess I'm going to have to start recording every thing I do with a date and a time. What a drag. THIS IS REALLY PISSING ME OFF!

Any suggestions? ttr

Subject: RE: infringement of intellectual property
From: Nigel Parsons
Date: 01 Aug 04 - 03:50 PM

The "defamation of character" bit is a non-starter, If it was your performance, and how it sounded at the time then it is honest comment. (The perfect defence against defamation of character (libel/slander) is that what has been said is true).

However, the copyright bit can be actionable, if you can show that it was your work etc., see the numerous copyright threads already available

CHEERS

Nigel

Subject: RE: infringement of intellectual property
From: open mike
Date: 01 Aug 04 - 03:55 PM

i was playing a gig last night and someone announced to me that they were recording (thinking it was a favor to me or something..?)
I asked them not to and asked someone else later to make sure the recorder was off. I was not doing original material, and i was not
getting paid for the gig, but i did not want my repertoire to get
snagged by anyone, and i did not know the guy, I did not trust him,
or was not aware of what he was going to do with the recording.
this made me quite nervous. It can be quite an issue, and one that
is cropping up more and more these days.

Subject: RE: infringement of intellectual property
From: Thomas the Rhymer
Date: 01 Aug 04 - 04:10 PM

Righto, Nigel... but I'm really speaking more to the hidden recorder... the one that captures moments that contain an artist's "intellectual property"... the one that is subsequently hooked up to the internet... and most of all, the one that has made a very clear recording without any acknowledgement or permission from the artist.

To me, these are salient points that have validity. If I am working on a song, and some sleazebag comes over and records it through the wall, what are my legal protections as to composition, and arrangement? If I perform poorly at a casual venue, and someone purposely records it without my permission and wholy without my knowledge... when it is obvious from the material that I would not want it published... What is my legal recourse? I am certain that there is one, and I'm sure I'm not the only one of us who will need it at some point.

Whatdoyathink? ttr

Subject: RE: infringement of intellectual property
From: Georgiansilver
Date: 01 Aug 04 - 04:18 PM

If someone feels they want to record any of my performances.let them! Does it really matter? If they record and use for gain, I have recourse if they have done it without my permission. If they use any of my original material I have recourse. If they only want it to play to themselves and friends..No problem. In fact if they are sad enough to try to tell anyone how good I am, perhaps they need their heads testing. If you are really good at what you are doing and someone is "using" you then do somwething. If not then stop worrying. Best wishes.

Subject: RE: infringement of intellectual property
From: Clinton Hammond
Date: 01 Aug 04 - 04:37 PM

If you don't want people to use it... don't share it with them...

Because you have NO recourse at all...

chill, and get on with your 'art'

Subject: RE: infringement of intellectual property
From: mg
Date: 01 Aug 04 - 04:46 PM

probably recording stuff yourself is a good idea....it will be easy and you will probably want to refer to it later for other reasons anyway. mg

Subject: RE: infringement of intellectual property
From: Thomas the Rhymer
Date: 01 Aug 04 - 05:10 PM

beg to differ, clinton... ;^)

Subject: RE: infringement of intellectual property
From: Clinton Hammond
Date: 01 Aug 04 - 05:36 PM

It's a fact TtR... you have little or NO recourse...

And well, I'll wager it's hardly worth worrying over anyway...

I've looked around and I don't see anyone getting rich off bootlegging you... so...

Ya sure it's not just your over-inflated sense of self-worth again?

Subject: RE: infringement of intellectual property
From: Richard Bridge
Date: 01 Aug 04 - 05:39 PM

UK, europe, performers' rights

Subject: RE: infringement of intellectual property
From: Thomas the Rhymer
Date: 01 Aug 04 - 05:43 PM

You'd be suprized... Truth is stranger than fiction.

Subject: RE: infringement of intellectual property
From: GUEST
Date: 01 Aug 04 - 06:43 PM

No recourse? Depends on where you are, nobody has bothered to say which jurisdiction is involved so nobody can give a useful answer. Just going "yah boo, yes it is no it isn't" certainly lives up to the opinion of Mudcat occasionally expressed on other forums.

Subject: RE: infringement of intellectual property
From: Nigel Parsons
Date: 01 Aug 04 - 07:55 PM

TTR: Yep, I "see where you're coming from" (please note, any expressions in the modern idiom may be treated as quotes!).
There is an awful lot of this in 'Filk' music (place the 'awful' where you will in the sentence!). In 'Filk' it is the norm to expect that someone else may re-write your material as a spoof/parody. It has been known for someone to be chording quietly at the back of a hall, carefully singing their new song (quietly) and it is overheard by someone who can recognise the fingered chords, and have the parody ready as soon as the original is performed. From there it is but a short step to getting the first performance as the parody, and claiming originality.
The only way to avoid this is to ensure that you have a record of the song as intellectual (this term may not include 'Filk') property before the first performance.
If you can cope with 'ABC' or similar, before your first performance post the song here (as "Lyr Add")with tune (in ABC) and with a request that it go into "The Mudcat Songbook" this at least will provide it with a first publication date. I am, of course, assuming the continuation of 'The Mudcat' so donations to the 'Cat accepted from those who wish to post lyrics here as a future reference/archive.

I hope some of this helps

CHEERS

Nigel

Subject: RE: infringement of intellectual property
From: mack/misophist
Date: 01 Aug 04 - 10:18 PM

Footnote: It was claimed that truthfulness is the best defense against a libel charge. Not so! Absolutly not so in the US, and I hear England's libel laws are looser than ours. Don't know about any other places. Trust me, my wife's a court clerk. She keeps the records.

Subject: RE: infringement of intellectual property
From: Thomas the Rhymer
Date: 01 Aug 04 - 10:41 PM

It is my understanding that 'malicious intent' is actionable.

The real impetous of my concern, however, stems from the unauthorized recording of any of my music. For me, it is a privacy issue. My creative process is comfortable with the 'in process' presentation of my music... for general feedback durring the process of writing... and so there are times when my 'product' is displayed in an unfinnished condition. But feedback and unauthorized global distribution are two very different things.

I believe it is my right to control the presentation and distribution of my own intellectual property.

What do you think about this?

Subject: RE: infringement of intellectual property
From: Rapparee
Date: 01 Aug 04 - 10:56 PM

My wife's an attorney and has some expertise in matters of copyright and intellectual property. Now, this applies ONLY to the US, so you folks in Canada and the UK and elsewhere will have to know the laws that apply there. And I'm not a lawyer, I'm reporting what she's told me. That said:

1. Unless the creator of the work has passed the copyright to another (e.g., by selling the rights to a syndicate), the creator owns the work. HOWEVER! the creator does have to be able to prove that it was his/her original work. For instance, "The Sierry Petes" has long been thought to have been in the public domain -- but it wasn't. The author was known and could prove he wrote it -- see Katie Lee's "Ten Thousand Goddam Cattle" and other places for the story.

Note that copyright doesn't apply to who performed the work first, but who created it.

2. You don't have to assert copyright, but it helps. You don't have to file with the Register of Copyright, but you have more protection if you do.

3. The suggestion is that if you find that your copyright is being violated or materials you created are being used without your permission and without attribution (and without royalties being paid to you, if you normally collect such), send a letter to violator INSISTING in no uncertain terms that s/he cease and desist IMMEDIATELY. Send it registered, return receipt, and have it signed for -- and if the unauthorized use doesn't stop, contact a competent intellectual property attorney. Use words like "attorney" and "lawsuit" in the letter, but make it friendly -- like you want to solve this problem without going to court over it, between friends.

Subject: RE: infringement of intellectual property
From: Thomas the Rhymer
Date: 01 Aug 04 - 11:52 PM

Thanks Rapaire...

I'm thankful for what you have added, as I'm sure to be able to use it. The dilemma I'm wondering about here is slightly different though. If I perform a song in a casual venue, I object to being recorded without my consent. It 'feels like' an infringement of my rights as a musician... as an arranger, as a songwriter, and as a performer. What I do is a craft, a trade, and 'could become' a vocation (as contrasted with 'a vacation'). However, in the greater scheme of things, considering the internet and the rather high quality of recording capability that the new minute and easily concealable devices attain to... It is concievable that (hypothetically speaking) all of ones material could already be in a 'post market' predistributed condition... easily transferrable from one person to the next... or from one person to hundereds at a single site or press of a key.

It's just going to get easier to do, and it will become more of an issue as the cyber world evolves. Do we just need to safeguard everything with backup recordings? ...and whats the point of doing this if one's material is already catapulted onto the net with no real accountability?

Just wondering, ttr

Subject: RE: infringement of intellectual property
From: mg
Date: 02 Aug 04 - 12:13 AM

I can't say that I understand this level of concern. If people are willing to go to all that trouble, as they would say for Bob Dylan perhaps, then tell people at events that you do not wish to be recorded and have c.d.'s or tapes available for them to purchase or get them to sign up for future ones. Do internet searches from time to time and go after the perps with a big hammer....mg

Subject: RE: infringement of intellectual property
From: Thomas the Rhymer
Date: 02 Aug 04 - 01:20 AM

This level of concern is that of being mildly annoyed about damage already done, and I'm calling attention to it because activity like this will only continue to increase for all of us as our daily lives are increasingly compressed into cyberspace by people we don't necessarily know or trust. Where does the privacy of intellectual property end? In our minds? In our front rooms? On the papers and CDs we save of our work? Does a public performance automatically hand over all rights of that show the moment it is recorded unbeknownst? Not in my book... I believe these to be moral issues that we are only beginning to confront, as we wade into the digital world. I, for one, am confounded by it.
ttr

Subject: RE: infringement of intellectual property
From: Georgiansilver
Date: 02 Aug 04 - 03:39 AM

If you wish to have proof of copyright on writing/songs/music etc there is a simple way of obtaining it. Before you project it anywhere in the public arena...suitably seal the original in an envelope, preferably with a wax seal and post it to yourself. You then have it dated and inside confirmed as your own work. Best wishes.

Subject: RE: infringement of intellectual property
From: Thomas the Rhymer
Date: 02 Aug 04 - 10:29 AM

I have several tricks like that one Georgian... and after studying copyright laws some years back, I'm backing up the 'good ones' very sufficiently. My concern here is not so much ownership of material... but ownership of real time performance and the products created by concealed recording devices without acknolegement or permission.
ttr

Subject: RE: infringement of intellectual property
From: Nick
Date: 02 Aug 04 - 10:39 AM

Perhaps it's a matter of intention, degree and fame?

In our local pub folk singarounds I have always recorded what we do. People who play there are aware of it and I occasionally pass round a cd of performances (or people ask me for one so that they can hear how they are doing). The intention, though, has always been as feedback to help rather than as an attempt to rip someone's work off.

Occasionally we have better known performers coming and in those circumstances I definitely would NOT think of doing it (unless with permission and I would think it rude to ask).

Now if Joni Mitchell happened to come into the pub on a wednesday night and sing whilst the tape was running now I would have an awful dilemma...

To record someone without their permission with the aim of gain has got to be wrong. To record someone who makes a living from their craft for personal use seems wrong also. At the sort of level that I play at most people seem to appreciate the feedback/record of what they've done and how they are improving (plus it is known about).

Presumably there is a crossover point but I don't know where. I presume it's once you have become 'famous' (locally - regionally - nationally etc)?

If you ever come visiting I promise I'll turn it off :)

Subject: RE: infringement of intellectual property
From: GUEST,Paul Burke
Date: 02 Aug 04 - 10:57 AM

You should feel flattered that people think you are worth the batteries. Do you really think they are going to sell it on, in competition with your own CDs? Or blag the words of your songs, do cover versions, and next thing you know they are on the front page of Hello?

Many of the best songwriters find their work coming back, years later, attributed to "traditional". And the best are happy about it, even when it returns as "shores of Erin".

Subject: RE: infringement of intellectual property
From: Richard Bridge
Date: 02 Aug 04 - 03:46 PM

USA did not (last time I looked) have performers' rights as such, and was not a signatory to the Rome (Performers) convention. The powerful record companies did not want performers having rights, see...

UK, performers do have rights including to permit the recording (or re-recording) and broadcast (but I'd be doubtful about transmission other than by way of broadcast, and the power of ISPs and EU law has watered down the argument that internet transmission necessitates ephemeral reproduction) of their performances, see sections 180 to 211 Copyright Designs and Patents Act 1988 as amended.

In the UK the truth of an allegation is an absolute defence to an allegation of defamation (but it helps to be able to prove that what was said is true, see for example the Geoffrey Archer libel trial). But editing a recording of a performance might well result in the edited recording not giving a true impression and so being actionably defamatory.

As far as the US is concerned I'd want to re-read a lot of stuff about "false light" before venturing an opinion about edited material breaching a performer's rights. Some states have more sweeping "publicity rights" than others and I think that is a developing field.

US readers may wish to source an up to date copy of Selz and Simensky's "Entertainment Law".

Subject: RE: infringement of intellectual property
From: GUEST,satchel
Date: 02 Aug 04 - 05:06 PM

How about refusing to perform in places that allow recording devices? Essentially, anyone who is recording your material without your permission is bootlegging--committing musical piracy--and can/should be asked by management to stop/leave.

If this were a Rolling Stones concert, that would be the case. Folk venues and performances are small potatoes, scale-wise, but the principle is the same. If you or a venue doesn't want to allow live recording, you or they don't have to. Hopefully your venue will back you up and enforce your wishes--just play it off like you're Mick Jagger.

Subject: RE: infringement of intellectual property
From: Peace
Date: 02 Aug 04 - 05:22 PM

Laws are in place to protect people and be abided by by people who obey those laws. Then there's the others . . . .

Subject: RE: infringement of intellectual property
From: Uncle_DaveO
Date: 03 Aug 04 - 10:45 AM

Personally, I am DEE-lited if someone wants to record my performance. What's more, if someone likes one of my songs, they are welcome to use it royalty free, given only that I am given credit. I'm flattered.

But then it should be said that at age 73 I can have no reasonable ambitions of being a "commercial" performer.

Dave Oesterreich

Subject: RE: infringement of intellectual property
From: dick greenhaus
Date: 03 Aug 04 - 11:26 AM

Woudst that the world would take performers as seriously as do the performers themselves.

Subject: RE: infringement of intellectual property
From: Clinton Hammond
Date: 03 Aug 04 - 11:32 AM

Naah... the world is pompous enough already!

Subject: RE: infringement of intellectual property
From: Thomas the Rhymer
Date: 03 Aug 04 - 12:11 PM

Oh, please... whether or not I have ambitions to be a commercial musician is unknown even to myself. If you want to call me names because you think I'm a conceited pompous ass... well then... hmmmm, I'm sure you've never met me...;^)

Jumping to conclusions is the only excercise some people ever get. 's that you Clinton?

How on earth do the more judgemental amoung you turn a privacy issue into conceit? What a load of crap. It just can not be legal to record a musician without their knowledge AND their consent. What's the big deal about being 'up front' about it, and asking the performer how he/she feels? If I want to keep the rights to my meagre musical performances and the content contained therein and to have some legal protection ...when I present material that is occasionally pleasing without being astounding... I am well within the confines of effective legal council.

If any of you are really confusing this swayback nag for a high horse... by all means... Cowboy Up!
ttr

Subject: RE: infringement of intellectual property
From: open mike
Date: 03 Aug 04 - 06:01 PM

on the other hand there are some performers who allow taping.
and even set aside an area of the seats at a live performance for tapers..and encourage it...
the greatful dead used to and Greg Brown is pretty good about it.
they did not feel that the existance of "bootleg" "tapes" diminished
sales of their recorded material. As long as people continue to support
artists by purchasing their recordings there should be allowances made.
(with permission) the times that recoreding happens without permission
and without knowledge of the intentions of the recorder that is when
the problems arise. OF course the fact remanis that it is actually
difficult to buy a mini disc with recording capabillities
or at least i had trouble last year...i was told that Sony had stopped
manufacturing them because so many people recorded concerts then slol them over the internet...Those recorders are a great tool to capture
tunes so you can learn them, or to document music....but can be weapons rather than tool if used incorrectly!

Subject: RE: infringement of intellectual property
From: dick greenhaus
Date: 03 Aug 04 - 06:10 PM

Thomas--I don't quite understand how a public performance involves a privacy issue

Subject: RE: infringement of intellectual property
From: Thomas the Rhymer
Date: 04 Aug 04 - 11:53 AM

Sounds goofy huh? Yeh I know... When someone records a performance, they are transferring an event from the specific location and time in which it was intended, and ownership of the performance is then physically transferrable without the permission of the artist.

The key word here is "permission". If people use recordings of a musician made without permission to ends that may compromise in any way that musician's 'potential livelihood' ...whether it is a pirated cd or performance... It is to some degree a privacy issue.

For me, a performance is often a chance to air a song to gauge the qualities of it's reception. Such is the nature of the bard's work. Sure, everyone who's paying attention to the 'general mood' will notice it... and talk about it... and potentially use what they remember of it... Which is fine with me. But recordings made of such moments bring vibrant and translucent interchanges into the domain of stagnancy and reification... and are part of that musician's resume, for whatever small amount of magic happens is available in realtime alone... and belongs exclusively to to the musician.

Also, when a recording is made and distributed without the involvement of the artist in question, the product is potentially editable by individuals who have no interest in the long term sucess of that artist... and so, may compromise or otherwise negatively effect the already tenuous future livelihood that a musician may have.
ttr

Subject: RE: infringement of intellectual property
From: M.Ted
Date: 04 Aug 04 - 02:36 PM

Thomas, you are an idiot(though perhaps a likeable one)--not necessarily for your concerns, but, because, though you know the basic process for protecting your material, you resist it--"I guess I'm going to have to start recording every thing I do with a date and a time. What a drag. THIS IS REALLY PISSING ME OFF!"--

You are also an idiot for not having looked into what even protections you have and you don't have(and there are many)--nothing that you bring up is "new" or cutting edge--the US laws, judgements, and court opinions are scattered about on the internet, and can mostly be had for free--UK and other, I am not sure about--if you have need of more information, or have a cause for action, you should contact an attorney--it will cost you money--so will a a firm but friendly letter to anyone who is infringing, as well as a not so friendly follow up--take it to court, and it will cost you even more money--

If there is a lot of money at stake, it may be worth the time and money, but if it is just "artistic integrity", you would be an idiot to pursue it--

Incidentally, people who have make tapes own those tapes, and may even hold copyrights to what is on them under certtain circumstances--that's why you need to tape stuff that you want to protect--

Subject: RE: infringement of intellectual property
From: Thomas the Rhymer
Date: 04 Aug 04 - 05:03 PM

;^) Underestimate, away! Nice of you to respond, though...

mted... I have recorded all my 'keepers' is several formats. But yes, you're right, I'm an idiot to be sure... just like you. I'm talking about the inefficacy of having to record each and every performance. Yikes! Do the rest of you do this?

No, I didn't think so.
ttr

Subject: RE: infringement of intellectual property
From: M.Ted
Date: 05 Aug 04 - 10:52 AM

From one idiot to another--

I have known quite a number of people over the years who record every single performance--not to protect their copyrights, necessarily (you can do this by simply making a rough recording right after you've finished writing the song), but ultimately just because they can(a bit like those who like to look at themselves in the mirror)--it is very easy, what with notebook or palm-sized digital recorders, and will give you a vast library to tend in your old age--

In former times, I was sloppy and tended to simply write lyrics on an envelope, and every once in a while sing into a portable cassette recorder--then I got the 4 track cassette recorder, and fiddled with things much too much, and finally, I've settled on writing MIDI into a notation program--I've still found ways to make it disorganized and sloppy, though--

People do have rights to record, and, though you control the copyrights, they may have rights to distribute copies of recordings that they have made--if you are concerned about this, you should get specific legal information on this issue--there are a number of books, written by music lawyers, which address these issues--

As to your right of privacy--my guess is that that does not apply to anything that is done publicly--

Subject: RE: infringement of intellectual property
From: Pat Cooksey
Date: 05 Aug 04 - 07:52 PM

Ask Noel Murphy.