Archival Recordings legalities

[Jazzdall]

I hope I am no incriminating myself or anyone...

I work at a performing arts center (PAC for short now) for my college. Our largest customer in the music department. They request all of their performances be recorded for either archival purposes or for sale purposes. Anything that is "for sale" we go through the process of getting the proper mechanical licenses and abide the law. No problem there. However they have been requesting more and more archival recordings (no licensing - as far as i understand, this is legal) these typically don't get any treatment and in my opinion are more than substantial for an archive. They all have now been requesting our dubbed "Higher archival" recording process which is the same as the "for-sale" CD's but are not duplicated. One master CD is created and it gets handed off to the department head.

My problem - I have heard rumors and logic tells me that they are duplicating the CD's and making the recordings available to all the students and parents are are told "hush hush don't tell the PAC staff." I don't believe they are making a profit off of it or anything, but illegal is illegal.

I am new to the job here but legend tells me that the PAC got in trouble for violating copy right law before, we changed our ways and now we are okay. But I don't want to get in trouble for something I don't have control over. I have confronted them about the distribution, though they have not admitted to it they have been alluding to using the "higher archival" recording for educational purposes.

Brief recap on my problem:

"Archival" recording (no license) - 1 cd created kept at music department for the ARCHIVE. (Is this legal? seems like a grey area.)

"Higher Archival" recording (no license) - 1 "for-sale" quality cd, assumed to be kept for ARCHIVE, possibly being distributed.

If you were in my shoes- What would you do? Would you fix it? If so, how?
I feel like I need a law degree to work here.

Any information would be great, Thanks!

[JEGG]

Originally Posted by Jazzdall

If you were in my shoes- What would you do? Would you fix it? If so, how?
I feel like I need a law degree to work here.

Any information would be great, Thanks!

I'm assuming you are in the US?

Here are a few thoughts and some different approaches:

You could make three phone calls: to BMI, ASCAP, and your local musicians union; and ask for their comment and advice. Tell them everything. Maybe everything's cool, but I strongly doubt it, going on the basis of what you've already described.

Most recordings termed "archive" aren't, and they are used to circumvent paying people who are obligated to be paid.

Another approach would for be for you to make the same phone calls without revealing your name and position.

A third approach would be to have someone else contact the same people as an anonymous concerned person.

Telephone numbers can be public even if you think they're blocked, so be aware of that.

It would be naive not to be concerned about your job in any of these scenarios. You may end up requiring some legal help if someone should become displeased with you. However, if you choose to do and say nothing, that, too, may come back to haunt you. Keep your hands very clean. You would be a great sacrificial lamb if they get into trouble-and even if you have nothing to do with alerting people.

**Very important: Do not, under any circumstances, have any conversation about this whatsoever with your Human Resources or Personnel Department, if you have one.** Remember, they are not on your side, they tasked with taking carrying out the wishes of the institution and getting rid of trouble makers. It's a common mistake to think Human Resources are there to give employees advice and help iron out your problems-they aren't, and don't ever become confused about that. Don't let the institution provide you will legal counsel, should that offer be made in the guise of protecting you or the institution. Nor should you have conversations with an attorney representing the institution. If they want a chit chat, insist on them paying for your own lawyer.

Find a lawyer now, just so that's done. You may not need one at all, or you may need someone to accompany you to a meeting or write a letter. That sends a very strong statement to the institution not to walk on you. I'd save that tactic until things look like becoming a legal or public relations problem for the institution or any of your superiors.

In your lawyer search you may be asked straight up on the telephone who you may have difficulties with, and what the difficulties are. Different lawyers have different people and organizations they don't take on (as defendants and plaintiffs), so be ready for that.

Appropriate lawyers can take lots of time to find, so find one anyway, no matter if these issues disappear and you never have to call him or her.

BTW, ASCAP and BMI might suggest local attorney's for you to talk with, and they might have a local or regional "compliance" person calling you for more information. Same with the musicians union. Local musicians unions could simply not be more different one from another. Anything could happen or not happen there. They are often rather blunt (often rightfully so) in their approach and tactics, so feel that out carefully before getting cozy there.

Entertain the idea of some careful emails to your superiors asking for clarification and raising some of your concerns. I would put it in terms of "protecting them," of course, you would be doing it to protect yourself.

Do create paper trails for everything. If someone calls with a directive, tell them to send an email for confirmation and clarity, including assurance that the product will not be reproduced.

If you meet with someone casually, send them an email afterwards "to make sure you understood everything correctly."

Just remember: the institution is there to protect their image and their money, and secondarily personal friends of administration- not to take care of you or any other employee.

Remember not to try to escalate things. It could be that the institution gets a call from ASCAP, BMI, or the union and the institution simply stops the practices. Easy! I do think your institution needs a call from soneone, though, to tighten up their operation.

So there's a bunch of things. Try one or two. Go on or not. And one thing may be all that's needed. An easy breeze.

BTW, I've never come across the term "High Archival."

Good luck.

Careful with what's on your employer owned computer.......

[Thomas W. Bethe]

Jazzdall,

^^^^^^^Some good advice but I don't think I would do anything about finding a lawyer or going to licensing organizations.

I have been in similar situations and I understand that sometimes faculty and administrators don't always know or follow the laws of fair use. I don't think it is something that you should worry about. What others do with your recordings is really not your concern. As long as you work for the same college then you are only doing your job. If you are concerned that you might be charged in copyright violation or mechanical rights violation then you may want to keep a log of what you send to the music department including the date, time and how many copies you send them so there is no questions later on. I am sure there are others on this board that will have advice for you as well. I do think this subject has been covered here previously. Best of luck and don't spend too much time worrying about this.

[mpdonahue]

With all due respect, this is really a solution in search of a problem.
What the client does with the recording after you give it to them is not your problem. You are paid to provide a service. Smart engineers realize this and stop worrying about what the concert band director is doing with the tape. Is the copy money really worth the bad blood created..... Seems like the school will do what most do, stop recording altogether or find somebody else.
I've recorded many hundreds of concerts and never once been asked about mechanical royalties.
Also, you might use the search feature here in the forum. This topic has been discussed ad nauseum.
Sorry for the curt response, but do we really need to rehash this again.....

All the best,
-mark

[rumleymusic]

What the client does with the recording after you give it to them is not your problem.

Exactly. Why are you worried about it?

I only require proof of mechanical licencing when I am selling duplications directly, not for archive jobs.

[kstrauss]

Mark is exactly right, it is not your problem, nor should you lose any sleep over it. As he mentions this is well covered in other threads, but briefly, most classical music is public domain so you probably do not need to worry about licenses for the vast majority of what you're recording. but anything composed after 1923 is covered by some copyright law or another.

The issue you are facing is whether the music department is making copies of the CD you provide for performers, family, friends, etc. It is generally understood that archival recording is OK. By extension, a copy of the recording for performers & family is also OK, publishers generally do not have a problem with that. This falls under the fair use. I won't go into that, a Google search will tell you all you need to know, but for fair use the most important consideration is the effect on the marketplace. Simply put, are the copies generated by your recording going to adversely affect revenue generated by the musical work represented in your recordings? If copies of the recording are provided only to performers, then the answer is no, and you meet the fair use criteria.

But either way it is not your problem and I don't think it would be wise for you to pursue this any further. A previous poster suggested that you lawyer up. This is terrible advice. Make the recordings. Give them to the music department. Be done with it.

[philper]

Originally Posted by kstrauss

Mark is exactly right, it is not your problem, nor should you lose any sleep over it. As he mentions this is well covered in other threads, but briefly, most classical music is public domain so you probably do not need to worry about licenses for the vast majority of what you're recording. but anything composed after 1923 is covered by some copyright law or another.

The issue you are facing is whether the music department is making copies of the CD you provide for performers, family, friends, etc. It is generally understood that archival recording is OK. By extension, a copy of the recording for performers & family is also OK, publishers generally do not have a problem with that. This falls under the fair use. I won't go into that, a Google search will tell you all you need to know, but for fair use the most important consideration is the effect on the marketplace. Simply put, are the copies generated by your recording going to adversely affect revenue generated by the musical work represented in your recordings? If copies of the recording are provided only to performers, then the answer is no, and you meet the fair use criteria.

But either way it is not your problem and I don't think it would be wise for you to pursue this any further. A previous poster suggested that you lawyer up. This is terrible advice. Make the recordings. Give them to the music department. Be done with it.

All good. But consider adding a small paragraph to the label of the CDs you give them spelling out what the legalities of the use of that material are. No need for a confrontation, but at least they will know what rules they are flouting (if they are flouting them). You and yr dept. seem to understand the situation, just do some diligence about letting them understand it too, and they can do what they are going to do.

phil p

[John Willett]

Originally Posted by kstrauss

most classical music is public domain so you probably do not need to worry about licenses for the vast majority of what you're recording. but anything composed after 1923 is covered by some copyright law or another.

Copyright also includes the arrangement - so, although the actual piece may be out of copyright, the arrangement may be a newer one, bringing it back into copyright - so be careful here.

Also, the person who made the recording owns the mechanical copyright of the actual recording - that copyright is yours, or your employers - depending on your contract. So copying is stealing from you / your employer as well.

To cover yourself, why not have a standard sheet which says what the CD is, that it is an archival listening copy only and must not be copied and the person has to song this and will be given a copy as well. You have covered yourself and if he copies the CD clearly knows what he is doing and can't get out of the consequences if caught.




Posted via the Gearslutz iPhone app

[mpdonahue]

Originally Posted by John Willett

Also, the person who made the recording owns the mechanical copyright of the actual recording - that copyright is yours, or your employers - depending on your contract. So copying is stealing from you / your employer as well.

....Unless you are being hired to record, then the person paying for the recording is the owner.
Again, I think that people need to stop thinking of themselves as a RECORD company selling a product and start thinking as a RECORDING company that provides a service.

As always, YMMV.
All the best,
-mark

[John Willett]

Originally Posted by mpdonahue

....Unless you are being hired to record, then the person paying for the recording is the owner.

Yes - that's why I said you / your employer.

[Corran]

I've often wondered, if I record a symphony concert with 60 orchestra members, and 100 choir members, technically, are those 160 people entitled to have an archival recording of the concert? They are the performers!

And that begs the question - if I or someone else provides an archival recording (charging only for the time and material to make a copy, not for the actual music), isn't that still a-okay?

I've heard wildly different opinions on both sides, from well-qualified engineers and mass media people.


On another note, the institution where I am attending has most of the "archival" recordings freely available to browse through at the (public) university library, right next to several tape and CD recorders/duplicators...

[NorseHorse]

Oh my! - Royalties & licensing fees for CDs: Free, Archival & Unreleased.

[Jazzdall]

Thanks everyone. You all have been very useful. I still don't know what I will do but I feel much more informed and comfortable about the situation. I think everything is in the clear, at least that I am aware of...

Thanks!