Re: Re: Indigenous music

At 09:15 AM 6/27/2005, Phil Leonard wrote:
>Robert Labossiere, MFA LLB said ...
>
>"Parallel to the thread about the Hollywood sign, if the convention for
>architecture is that a photograph of a work taken from a public view point
>is permissable, then a sound recording made of a public performance should
>be similarly permissable."
>
>If this were true I could have a tape recorder on the Washington Mall and
>record the Independence Day performance by the Beach Boys and sell copies
>of it. Perhaps I should pay mechanical rights for the copyrighted songs
>but the above senerio suggests the actual performance by the artists is up
>for grabs.
>
>Perhaps one of the things that might distinguish the difference of these
>two is that the Hollywood sign is not using itself to make a living. So a
>photo of something in a public place is different from a performer who is
>expecting to maintain control of his or her product.
>
>I hope others will chime in and provide a more eliquent expanation than
>mine. As a radio producer I know one cannot simply record a public
>performance for anything other than personal use (and often that is
>prohibited by the venue at the direction of the performers) without the
>permission of the artists. This could possibly be accomplished by getting
>the artists' verbal permission on tape but the written release is prefered.

There's a distinct difference between architectural works and musical works in these two examples.

An architectural work is being "publicly displayed" while the musical work is being "publicly performed."

Section 106 of the Copyright Act enumerates the rights in copyrighted works. The first 3 apply to all categories of works, the last 3 apply to only certain categories of works. For example, there is no public performance right in sound recordings, but there is a right of public performance by means of a digital audio transmission.

There are also limitations in sections 107 through 122. Among these is the one relevant to this discussion: 120(a), which permits pictorial representations of architectural works that have been constructed.

Mr. Laboissiere's analogy from architectural works to musical works and sound recordings doesn't work, because there is a specific exemption for architectural works. I hope that this is the more eloquent explanation that Mr. Leonard sought.

S. Martin Keleti
Cohen and Cohen
740 North La Brea Avenue
Los Angeles, CA 90038-3339
323.938.5000
323.936.6354 fax Received on Sat Dec 10 2005 - 03:05:30 GMT