Wait a minute!

Aren't Bootlegs Illegal?

It is not illegal to own bootlegs

Just like fireworks in many states, you can own all the bootlegs you want as long as you don't sell or perform them. So far I know of only one case in which a personal bootleg collection was seized and in that case the owner did, in fact, intend to set up a business of selling them through mail-order.

US Code does not forbid owning any recording, even if it infringes on the rights of the copyright-holder.

It is not illegal to record a performance with the permission of the performer

US Code specifically exempts recordings made with the permission of the artist. Does your favorite band allow taping? Ask them and find out. If so, it is not infringing or illegal to record-, and distribute a recording of, a show. If not, you're on shaky ground.

Most record labels do not allow the recording of their live shows. This is stipulated on the tickets. However, this is not a legal requirement. It is a one-sided contract and may or may not be binding. They do this because giving you permission exempts you from any control on the use of that recording. If they say you can record, you can do whatever you want with that recording, even selling it! For this reason, most record labels and management companies will not give you permission even if the artist wants taping to be allowed.

Some venues don't allow recording. This is usually enforced by the security guards outside. However, it is not illegal to record shows, just not allowed by some venues. You are on private property and they can allow or forbid anything they want. If you are caught with a recorder, most venues will take it (or the tape) from you and let you have it back after the show. They really cannot keep or break a recorder, but some will do this anyway.

It is illegal to make bootlegs for sale

Selling bootlegs violates US Code in many ways and is specifically prohibited if the permission from the performer was not obtained.

Making a run of bootleg CDs to sell to record stores or through mail order is very much illegal and is likely to get you arrested in the US. Making a run of tapes for sale is also illegal. Even trading a tape for two blanks or some stamps or a couple of dollars is illegal! However, making a just few tapes from a private collection and trading them at cost to other collectors is probably not going to get you arrested. Just know that it is a violation of US Code and it could land you in jail.

It is illegal to sell bootlegs

This usually applies to stores and mail-order houses, but applies equally to private individuals. Many small, non-chain record stores sell bootleg CDs as "imports" and a few others sell bootleg tapes, too. These stores have been raided in the past for selling bootleg CDs and closed down, but not too often. These raids are usually more of a show of force, an example, or an excuse to shut down the store than anything else.

It is not illegal to make bootlegs for sale in Italy

In Italy, any unpublished material can be published by any company as long as a fair royalty is put aside for the originating artist. It is this loophole that allows like KTS and Rarities and Few to stay in business producing bootleg CDs. They put some small royalty in a bank account for the band to take and make their CDs with impunity. The only trouble is, almost all record contracts forbid a band to publish on another label so bands almost never see that money. Germany may have similar laws.

US Customs will seize shipments of bootleg CDs on their way into the US

Italian mail order houses usually ship only a few CDs at a time to make their orders less likely to be inspected and seized by US Customs, but there is still a fair chance that they will be seized. This is one of the things that makes boot CDs expensive in the US. The other is ridiculous price-hiking by the stores and distributors in the name of "risk". However, US Customs usually doesn't care about travelers who bring back a few boots from the Continent in their luggage for personal use.

Some bands and clubs allow taping

Currently only the Grateful Dead, Metallica, and the Black Crowes, among other smaller bands, have specifically allowed taping at their shows. Many bands don't mind taping and will give you permission if asked privately. However, their management will probably not give permission because almost all record labels frown on taping. Ask the band members themselves for permission. They own the copyright anyway! Most small venues (clubs and bars) implicitly allow taping by not disallowing it, searching people on the way in, or not watching for red lights in the audience during the shows. Many small bands, in fact, are flattered by tapers and even don't mind video taping! As Robyn Hitchcock said at one show, "Oh, look, I'm on the telly!"

On Copyright Infringement

Consider these cases:

1. Regardless of your position on the issue, possessing drugs is a crime. It is legally classified as a felony, in fact, and merely doing it makes you fair game for arrest by any passing police officer.
2. Within reason, fighting is not a crime. If you and I get in a fist fight in the privacy of our own homes and do not disturb anyone else and do not want to hold each other liable, we have not committed a crime. We cannot be arrested. Only when a participant claims to have been wronged can legal action be taken.

Legal action can only be taken when a party claims to have been wronged by the action. This means that there is no problem with taping unless the band, their management, their agents, their record company, the venue, or someone else reasonably involved wants to press charges. This is unlikely to happen unless you are really selling bootlegs or something else that would make their pressing charges worthwhile.

There is also a moral side to the issue. Even if they don't want to press charges, what if a band doesn't want inferior or embarrassing recordings of their music to circulate? A true fan may consider unauthorized taping of a performance as morally wrong, and not respecting the creative contributions of the performers. Plus, they do have a legal property interest in performance. It belongs to them unless they specifically give it to you.

You should decide if sneaking a device into a venue to record a performance without permission is worth the moral and legal risk. Sneaking a recording per se may not be illegal. Sometimes sneaking is done just to avoid questions from fellow concertgoers and security personnel unaware of the legality of the recording. Sometimes, though, it is done specifically to circumvent the legal claims of the artists, and this is wrong and illegal.

That's what I know of the current legal situation for tapers in the US. Please don't take this as law or as a recommendation either way since I have no citations and no legal training. I am just trying, like you, to figure out bootleg law.

Please do send comments, corrections and suggestions to me by clicking the mailto link below!

United States Code, Title 17, "the Copyright Act"

Section 1101(b)

This section specifically addresses "Unauthorized fixation and trafficking in sound recordings and music videos". Here is the section in full and my comments:

§ 1101. Unauthorized fixation and trafficking in sound recordings and music videos 

     (a) Unauthorized Acts. - Anyone who, without the consent of the performer or 
     performers involved - 
          (1) fixes the sounds or sounds and images of a live musical performance 
          in a copy or phonorecord, or reproduces copies or phonorecords of such 
          a performance from an unauthorized fixation, 
          (2) transmits or otherwise communicates to the public the sounds or 
          sounds and images of a live musical performance, or 
          (3) distributes or offers to distribute, sells or offers to sell, rents 
          or offers to rent, or traffics in any copy or phonorecord fixed as 
          described in paragraph (1), regardless of whether the fixations occurred 
          in the United States, shall be subject to the remedies provided in 
          sections 502 through 505, to the same extent as an infringer of
          copyright. 
     (b) Definition. - As used in this section, the term "traffic in" means 
     transport, transfer, or otherwise dispose of, to another, as consideration 
     for anything of value, or make or obtain control of with intent to transport, 
     transfer, or dispose of. 
     (c) Applicability. - This section shall apply to any act or acts that occur 
     on or after the date of the enactment of the Uruguay Round Agreements Act. 
     (d) State Law Not Preempted. - Nothing in this section may be construed to 
     annul or limit any rights or remedies under the common law or statutes of 
     any State. 

My comments and interpretation:

"without the consent of the performer or performers involved"

This means that the performer, not their management, record label, venue, or local authorities, owns all rights to a specific musical performance and may give consent to record and distribute recordings of the performance. This consent removes any and all restrictions on the distribution of that recording!

"fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord"

This is the definition of a taper, recorder, or bootlegger. Whatever you want to call it, this means you.

"or reproduces copies or phonorecords of such a performance from an unauthorized fixation"

This means that even if you didn't record a performance personally, copying that recording is included here as well.

"transmits or otherwise communicates to the public"

So you can't put MP3 copies of your tapes up on a web site for all to download.

"traffics in any copy or phonorecord"

The term "traffic in" is defined below.

"the term "traffic in" means ... transfer ... as consideration for anything of value"

This part is really interesting. This means that you are not considered to be trafficking in phonorecords if you are not asking for anything of value. What is anything of value? Well, certainly money is valuable. The RIAA successfully prosecuted a "two-for-one" tape trader, so blank tapes are valuable. However, they have not gone after "one-for-one" traders who either copy their recordings to someone else's tapes for nothing or trade a copy for another copy. So are one-for-one trades specifically legal? The RIAA may think so, and this section seems to indicate that they are.

Section 114(b)

Section 114(b) of the U.S. Copyright Act seems to indicate that it is legal to distribute non-copyrighted recordings of copyrighted "sounds" for non-commercial purposes.

"The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording."

This sure sounds like it means that if I record a band playing a song, I can distribute it all I like as long as it's not commercially distributed! Is a live performance an "imitation" of a sound or an entirely new sound? Are sounds copyrighted immediately upon their creation?

This jibes with the actions of the RIAA, which has only acted against those who profit from live recordings.

Section 114(b) also specifically allows non-commercial distribution of radio broadcasts.

Section 110(4)

Section 110(4) also seems to allow the sharing of performances of copyrighted works.

"... the following are not infringements of copyright: ... performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if - (A) there is no direct or indirect admission charge ..."

Section 201(b)

Section 201(b) refers to the ownership of a copyright.

"(b) Works Made for Hire. - In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright."

Is a live musical performance a work for hire? If a musical performance is a copyrightable work, and if the attendees together contribute money to pay an artist to perform, do those attendees own the copyright on that performance? If it is not a copyrightable work, as speculated above, then this doesn't matter. If so, do the attendees or the promoters own the performance. If the promoters own it, do they give up their rights to it by specifically allowing it to be performed publicly? Or do they sell rights to it to paying ticketholders?

All of this sounds like it may allow performances to be considered property of attendees.

Section 107 (the "fair use" clause)

The Fair Use clause is also somewhat interesting relating to distribution of samples of music on the 'Net.

• How to record your own tapes
• General information on bootlegs

sfoskett@slf.gweep.net