Brad

Copyright

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The issue of copyright and what is or is not in the public domain seems to come up with some regularity. Here is a recent article on what is now in the public domain as George Gershwin's composition "Rhapsody in Blue," along with most other works that were first published in 1924, entered the public domain in the U.S.

See The Murkiness of the Public Domain

Here is a handy checklist that is cited at the end of the article:

Copyright Term and the Public Domain in the United States

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What kind of law needs to happen so we can hear "Rhapsody In Blue" less regularly, like, never?

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Not even in the abstract.

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Posted (edited)

So if I'm reading this right, Blue Note recordings from their heyday, 1955-1969 or so, are now protected for 110 years? This used to be 75 years after the death of the performer, right? So this means that now none of them will enter the public domain until 2065. 

It really makes me wonder why I'm seeing all these repackaged Blue Note dates from the EU. They're everywhere in the stores around me. It would seem to be pretty easy for their legal eagles to stop these from being imported with such a straightforward copyright.

Edited by bresna

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6 minutes ago, bresna said:

It really makes me wonder why I'm seeing all these repackaged Blue Note dates from the EU. They're everywhere in the stores around me. It would seem to be pretty easy for their legal eagles to stop these from being imported with such a straightforward copyright.

You are seeing those EU "reissues" because they are jazz and the corporate/political powers that be could not care less about jazz.  The copyright laws, as they pertain to music, are now designed to protect 3 principal assets:  Elvis assets, Beatles assets and Disney assets.  Blue Note music sales are likely such a small percentage of the overall income of whichever multinational corporate behemoth owns the label and its rights nowadays, that it would likely cost them more to put their teams of high-powered corporate attorneys to work seeking out and trying to put a stop to the influx of these EU discs into the US market than they theoretically/actually would lose in profits from that tiny little portion of their corporate sales figures. 

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Posted (edited)

1 hour ago, bresna said:

So if I'm reading this right, Blue Note recordings from their heyday, 1955-1969 or so, are now protected for 110 years? This used to be 75 years after the death of the performer, right?  

Don't think it was ever that but it was more than the 50 years after publication that used to be used in  Europe.  Also I'm curious about who the author of a sound recording is or are they all "works of corporate authorship". 

      

Edited by medjuck

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4 hours ago, bresna said:

It really makes me wonder why I'm seeing all these repackaged Blue Note dates from the EU. They're everywhere in the stores around me. It would seem to be pretty easy for their legal eagles to stop these from being imported with such a straightforward copyright.

Didn't read the whole article, but does it specifically state that it is illegal to import (or even sell) these items in the US? I'm still not sure that it was ever actually illegal to do so. "Illegal" sure, but I think anybody would have a hard time winning that one if push came to shove?

Maybe Brad or somebody else with the legal chops to do so can cite precedent for this? Or even better, explicit legislation?

Just want to know the real facts about this, not American/industry spin.

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Unfortunately, I only know enough to be dangerous. However, if a work is in the public domain in the EU but not in the US, the copyright owner would have an action against the person infringing the work. Leaving aside the question of jurisdiction (the person making the copy may be located outside the US and you may not be able to haul him into a US court), in the case of jazz sound recordings, the number being sold in the US may be so small that it may not make economic sense to justify filing a lawsuit. Now, if we were talking about Taylor Swift’s records, probably a different story. That’s real money. 

I believe Joe Medjuck’s son is an intellectual property attorney.  He can probably provide a better answer. 

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1 hour ago, Brad said:

... if a work is in the public domain in the EU but not in the US, the copyright owner would have an action against the person infringing the work.

That's part of my question - where is the copyright infringement in a retailer selling something that is legal in the point of origin (and was presumably originally purchased there)? "Where is" meaning simply the explicit statute? Or is this open to interpretation?

 

59 minutes ago, Teasing the Korean said:

Don't forget the difference between "illegal" and "unlawful." 

Yeah, that's what I'm wondering about.

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Didn't we have this discussion several months ago? I seem to recall someone posting a link to a case study about this sort of question. I forget the details but I think it was something like this: the recording originated in the UK, at some point it was leased to a US label, copyright expired in the UK but still persisted in the US, the US copyright holder sued someone (presumably a PD label) for trying to sell the recording in the US. Or maybe I dreamed it all.

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1 hour ago, JSngry said:

That's part of my question - where is the copyright infringement in a retailer selling something that is legal in the point of origin (and was presumably originally purchased there)? "Where is" meaning simply the explicit statute? Or is this open to interpretation?

 

Yeah, that's what I'm wondering about.

I believe the domestic "infringer" is the importer - unfortunately the US law has no teeth and victims are left to pursue civil litigation against all the perps. Not a workable situation for the transgressed.

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59 minutes ago, Chuck Nessa said:

I believe the domestic "infringer" is the importer - unfortunately the US law has no teeth and victims are left to pursue civil litigation against all the perps. Not a workable situation for the transgressed.

which is probably not cost effective for the injured party. 

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I believe that the Canadian company Naxos were sued  (and lost) for importing such cds into the states.  Too bad, since they have a great series of Ellington cds which include some cuts that aren't available elsewhere. 

4 hours ago, Brad said:

 I believe Joe Medjuck’s son is an intellectual property attorney.  He can probably provide a better answer. 

Unfortunately my son is getting tired of answering my copyright questions. ( I think he's going to start billing me for his time.) . But I'll bug him about this anyway. 

3 hours ago, Teasing the Korean said:

Don't forget the difference between "illegal" and "unlawful." 

Huh? 

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13 minutes ago, medjuck said:

Unfortunately my son is getting tired of answering my copyright questions. ( I think he's going to start billing me for his time.) . But I'll bug him about this anyway. 

I can understand that! 

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Posted (edited)

2 hours ago, medjuck said:
5 hours ago, Teasing the Korean said:

Don't forget the difference between "illegal" and "unlawful." 

Huh? 

The short of it is that an illegal act is one forbidden by law, while an unlawful act is one not permitted by or conforming to law. Torts (civil wrongs) fall in the latter category, for example, but may not have a criminal element and thus not fall in the former.

In the copyright case, and IANAL so don't go quoting this in your dissenting opinion or anything, the act of copyright infringement is unlawful, but there is no *generic* statute that says "hey, don't you go infringing", so it is therefore not inherently illegal. Instead, the illegal act you'd get nailed for would be something like selling counterfeit goods, or violation of the DMCA (which is very particularly the bypassing of copyright controls, not the copying or selling of material). The closest to a generic infringement law in the US is probably the 1997 NET Act, but it won't apply to, for instance, my making a tape copy of an LP and handing it to you for free (nor would its earlier incarnations, all of which required the infringement to be for the purposes of profit). (It's not clear that *any* US law would apply in that case, despite what the labels and RIAA want you to think. The act may be considered unlawful, and there may be case law one can build on, but I don't believe it is illegal. Again, IANAL.)

Edited by lipi

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I respect an artist's right to protect his material and obtain income from its sales. Who wouldn't?

But now, iconic music is controlled by three huge monstrosities that did absolutely nothing to create it, and usually pay no royalties to the artists or their estates. So it doesn't bother me that non-name companies are releasing the music.

Years ago, I heard about a time when McCoy was asked, at a gig, to autograph a CD of "The Real McCoy". The excited fan said that the CD was selling well. McCoy said that he wasn't getting anything from the CD sales.

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Posted (edited)

6 hours ago, lipi said:

The short of it is that an illegal act is one forbidden by law, while an unlawful act is one not permitted by or conforming to law. Torts (civil wrongs) fall in the latter category, for example, but may not have a criminal element and thus not fall in the former.

In the copyright case, and IANAL so don't go quoting this in your dissenting opinion or anything, the act of copyright infringement is unlawful, but there is no *generic* statute that says "hey, don't you go infringing", so it is therefore not inherently illegal. Instead, the illegal act you'd get nailed for would be something like selling counterfeit goods, or violation of the DMCA (which is very particularly the bypassing of copyright controls, not the copying or selling of material). The closest to a generic infringement law in the US is probably the 1997 NET Act, but it won't apply to, for instance, my making a tape copy of an LP and handing it to you for free (nor would its earlier incarnations, all of which required the infringement to be for the purposes of profit). (It's not clear that *any* US law would apply in that case, despite what the labels and RIAA want you to think. The act may be considered unlawful, and there may be case law one can build on, but I don't believe it is illegal. Again, IANAL.)

There is no difference between the terms illegal and unlawful and I am an attorney. If an action is unlawful, it is contrary to law (statute). Similarly, if an action is illegal, it is not legal or contrary to law.
 

Statutes don’t tell you to not commit a certain act. They define the act and prescribe a penalty if you commit that act. For example, in NY, the penal code defines what constitutes second degree murder and the penalty for committing it. 

Edited by Brad

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Posted (edited)

I suppose that there is no need for such a distinction for most people. Although, I'd say that in some jurisdictions the difference might have some implications. There was a joke back when I was in law school that it was not illegal to murder someone. It would just have legal consequences. 

Edited by Daniel A

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2 hours ago, Shrdlu said:

Years ago, I heard about a time when McCoy was asked, at a gig, to autograph a CD of "The Real McCoy". The excited fan said that the CD was selling well. McCoy said that he wasn't getting anything from the CD sales.

Stanley Turrentine & Jackie McLean said the same thing to me, so I brought it up to Tom Evered when he was still working at Blue Note. He said that Blue Note tore up all their original contracts and rewrote them using "modern standards" so that all of the older Blue Note recordings were generating some revenue for these artists. He said that the next time one of these guys tells me this, give them his number (now long defunct) and he'll check to make sure the money was getting there.

Now Prestige is a whole other matter. Gary Bartz has flat-out told me to steal/copy/tape all of his Prestige recordings to my heart's content because he has never received a dime from any of them. He is very bitter about it.

And this isn't a old thing either. Eric Alexander did a couple of obscure dates for a small Japanese label. One was called "Heavy Hitters" and the other "Extra Innings". When I asked him to sign one at a gig, he told me that the label never even paid him for making the recording, never mind residuals.

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41 minutes ago, Daniel A said:

I suppose that there is no need for such a distinction for most people. Although, I'd say that in some jurisdictions the difference might have some implications. There was a joke back when I was in law school that it was not illegal to murder someone. It would just have legal consequences. 

It could be that there is a distinction in non US jurisdictions.  However, that’s purely a guess.

At any rate, I think we’re getting a far afield from the main topic. 

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Posted (edited)

1 hour ago, Brad said:

There is no difference between the terms illegal and unlawful and I am an attorney. If an action is unlawful, it is contrary to law (statute). Similarly, if an action is illegal, it is not legal or contrary to law.
 

Statutes don’t tell you to not commit a certain act. They define the act and prescribe a penalty if you commit that act. For example, in NY, the penal code defines what constitutes second degree murder and the penalty for committing it. 

But a corporation will use a liberal interpretation of what is and is not permitted under law, to protect their product (and profits).  If it were as cut and dried as you make it appear, we would not need lawyers, and you would be out of a job.  

In other words, the party that is telling you what is "unlawful" may have its own agenda and may be misleading consumers.

For example, record companies have made the claim that you can't keep legally extracted digital files if you sell the original CD.  To my knowledge, this has not been tested under US law, and US lawyers do not universally accept this interpretation. 

Edited by Teasing the Korean

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30 minutes ago, bresna said:

Gary Bartz has flat-out told me to steal/copy/tape all of his Prestige recordings to my heart's content because he has never received a dime from any of them. He is very bitter about it.

That's weird, because he produced all but one of those Prestige records himself except one. He moved from Milestone to Prestige but still kept working with Orrin Kepnews. They had a run of, what, six years? Still not sure why the label changed away from Milestone, it was the same company by then.

Not saying he didn't get screwed, but I wonder what happened there, exactly?

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16 minutes ago, Teasing the Korean said:

But a corporation will use a liberal interpretation of what is and is not permitted under law, to protect their product (and profits).  If it were as cut and dried as you make it appear, we would not need lawyers, and you would be out of a job.  

In other words, the party that is telling you what is "unlawful" may have its own agenda and may be misleading consumers.

For example, record companies have made the claim that you can't keep legally extracted digital files if you sell the original CD.  To my knowledge, this has not been tested under US law, and US lawyers do not universally accept this interpretation. 

That’s a different issue. I was just keying on whether there is a difference between the two terms, nothing more.

On your point, statute interpretation is part of what attorneys do. 

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