Getting sued over online mixes
Frank
2,370 Posts
A german tunesian gentleman threatens to take legal action because I used three songs on my mixes for which he claims to own the legal rights.How afraid do I have to be?
Comments
Seriously though, I don't think you have to be too worried. I can't imagine someone would actually go through with a lawsuit. I am not sure you have much responsibility in this matter - all you did is play the record and tape the mix. You're not hosting it and I don't think the argument can be made that you're bootlegging the material (you're not selling it). He might be able to force a host to take the files down but I sincerely doubt he can do anything to you. I'm pretty sure this will end with a cease & desist letter that you can choose to ignore at probably no cost.
If he wants to re-release any of this stuff then he should understand that the fast growing new audience that exists for this music is due to people like you spreading the word.
O.
Tell him to eat a fat bag of dicks.
An opportunist looking for an opportunity.
he is (legally) right, you are wrong.
if you want to gamble, go ahead and keep it online.
Frank doesn't have it online. He is not hosting it. He is passing around a free mix of records he owns.
I'm no lawyer, but....
he made and distributed a mix with music that he didn't create. the issue isn't whether he owns the records, but whether he made the mix and gave it to another person.
owning music doesnt give you the right to distribute it, copy it, or (technically), even broadcast it. so unless he made the mix for himself and the hosting website snuck into his house, stole it and put it online...he has violated the law.
Peace
T.N.
we've been communicating via eMail for the past few hours and now he just wants to have his comps mentioned on my Blog as well as below the tracklist of my mix here on Soulstrut. I can't speak for Raj of course but as far as I am concerned, this sounds fine.
this really should've been how it went down from the jump.. glad to hear it's all worked out tho..
Hey, congrats and thanx for blowing your big 5000 on this thread!
Ummm... Are you sure about this? I know you are a lawyer, but do you know what the laws are for these countries being talked about?
My opinion is Frank should tell the guy to lick his nut sack and if he wants to hire a lawyer to go after him in his country on a mix CD he never sold and that he isn't personally hosting...
Damn I should have held out a few more for the same result!
Ummm... Are you sure about this? I know you are a lawyer, but do you know what the laws are for these countries being talked about?
he didnt ask what the law was for a specific country so i assumed he was talking about federal law in this country. this seems like a dead issue now, but you are right, if the compilation guy is threatening to sue in another country, the law could be different. then again, its a lot easier to just take the mix down (or ask to have it taken down), then it is to research foreign law and be confident that your research yielded the right answer.
My innitial response to him was a bit rude I have to admitt...
Well, if this way some of the musicians make a few bucks in royalties, I'd gladly put up a link or a review of his comp and everybody walks home happy.
I've always tried to encourage people to buy (legal) comps and reissues. Just didn't think that posting mixes for free would be an offense. Who would not buy a CD because he'd already have some of the tracks on a mp3 mix? If anything, this should rather be a reason to go and buy the CD.
It just struck me as odd that with all the tens of thousands of podcasts and DJ mixes out there, some with stuff from major labels, I'd get into trouble over some rather obscure stuff like this.
Okay, I gotta run, I have a plane to catch.
I DJ at an all volunteer non-profit radio station and we are allowed to play anything as long as we document what we played...how is what Frank did different from me playing records and documenting what I played?...I could play Franks mix on the air and be in the clear and the dude who "owns" the records has no legal recourse...no one is profiting from the playing of the songs. If no money is being made, where is the crime?
I'm pretty sure the reason you have to document them is so that the legal owners get notification and can deduct what you would have paid them had you been commercial station, as a write-off on their taxes.
Can't guarantee 100% this is the case, but I can't think of another logical reason you would have to document your playlist if you're not obligated to pay anyone royalties?
I'm dealing with the same thing at my radio station (I podcast my show but can't mention the podcast on air or use station equipment as I may leave my station liable). The difference is that you are making a copy and distributing it rather than just broadcasting copyrighted materials. The licensing for broadcasting materials is separate from the licensing for copying and distributing materials. Now, WFMU openly offers podcasts of many of its shows ... they're getting away with it for the moment. Basically, noone has been brought to task yet (that I am aware of) so the situation is rather murky right now.
he didnt ask what the law was for a specific country so i assumed he was talking about federal law in this country. this seems like a dead issue now, but you are right, if the compilation guy is threatening to sue in another country, the law could be different. then again, its a lot easier to just take the mix down (or ask to have it taken down), then it is to research foreign law and be confident that your research yielded the right answer.
Well, I can't remember the whole back story on this one. But just the fact that Frank is in Africa and the dude is in Germany (I believe he is anyways), and we are talking about music not from the USofA, I'm guessing US laws don't mean much. And even if it was the US. Has anyone heard of anyone doing a promo CD that's 100% not for sale being sued and losing the case? Since it seems like US labels aren't having much success going after dudes selling thousands of mixed CD's right down the street from corporate headquarters, I doubt some small little label would have much success going after some guy (Not a company) in Africa.
I remember when my store was raided a few years back for selling mix CD's. Charges were later dropped.
Plus, I forget. Was this the dude that made it sound like he had only licensed the tracks? Did he provide proof he was indeed the copyright holder?
In anycase, like I said. I would either tell the guy to go jump in a lake or just completely ignore him until a letter is sent from a lawyer. Then I would tell the lawyer to go jump in the lake...
If you dont mind I would like to give you my side of the story.
Frank release a mix few months ago with two tracks that I had licensed few month earlier. Knowing that Frank was going to do mixes regulaly and knowing the size of the music industry in Benin , I wrote to him. I explained that I dont mind few tracks on a mix but that it wouldn't be good if by the time I release the compilation most of it would already be availabe for download on various website.
The reason for this is that all the tracks which will be released on that compilation will also be sold online (itunes and others), 14 tracks from 14 different composers, and each of them hopes to receive a % per download. So if three or four tracks are downloadable on a website, people might go for the ones not available for free instead and that would have consequences for some composers. That was my fear and I have explained this more than one time, to both Frank and RAJ.
So I Spoke to a lawyer (and yes I threatened to sue them basically because I had the feeling I was speaking to myself). His first sentence was "does he pay GEMA? my answer was "I dont know", he continued "find out cause if he pays GEMA he is allowed to place that mix on a website" Basically what this means is that ( like any radio station) It is not illegal to place a mix on a website as long as it is declared and royalties payed. (to the GEMA in Germany or SACEM in France) That money will be forward to the BBDRA which is " Bureau Beninois des droits d??auteurs". I was in Cotonou when Melome Clement from Poly-Rythmo collected money from the BBDRA for radio airplay and various others so I know for a fact that it works.
In the US, my distributer is also the one handling my digital rights (downloads) so you can imagine how they reacted when I explained to them that 1/4 of "our" next compilation could already be downloaded for free. Do I need to mention that they have a legal department?
Anyway I came back from South America to find yet another mix and other two tracks. So I wrote an umpleasant mail to RAJ, but Iliked his response:
"The MP3 on the web site is one continual promotional DJ mix , not a
collection of songs. If anything it will promote awareness of the
music so people can buy the legitimate music. If I delete the mix I
see it having more harm than good. What do you think?"
It made sense to me, so I replied with a long and positive mail and the only thing I was asking for was if it would be possible to mentions at the end of the mix that thoses two tracks would be released in February. Maybe I was asking for to much, not sure, but that message was ignored and after I wrote another email were I was getting annoyed, the mix was removed.
Now RAJ wishes my Compilation to flop! Amazing, He places a mix on his website that he obviously admires but wishes the compilation which will contain thoses particular tracks to flop? Doesnt a flop also means less cash for the composers in Benin? Doesn't Passion for music also means that we want the people who created the music we are listening to, to succeed?
The efforts and the costs required To release a fully licensed African compilation are enormous but some dont care how the "plate" lands on their record player they just want the music.
PS: Here my last Mail to RAJ (same result as always...Ignored)
Raj
I saw that you removed the mix. This was NOT the
solution I was hoping for.
Why we failed to find an agreement is beyond my
understanding. I am disappointed.
Anyway Frank and Myself just had a friendly mail
exchange so if you like you can put the mix back on
your website.
Hope this finds you well.
Samy
Can u sue when you are not the copyright holder?
that is a great question. if he is just licensing the work (and its not a permanent, exclusive license), i would make an educated guess that he doesnt have a claim under federal copyright law (in the us).
however, he might have a claim here for tortious interference with contract.
Thats the essence of an license agreement. The musicians (or producer) are the original holder of the copyright. When an exclusive licensing deal is signed you basically become the "successors", this of course is for a limited time. It gives me the exclusive privilege of multiplying CD/Vinyl.
Please explain how this works. If you have an exclusive license that expires after a "limited time", what is the point? Your goal is to sell cds/vinyl/mp3s...and if someone else can come along shortly after your license expires and compete with you, i dont understand what the benefit could be. Also, i'd really like to see how this contract is worded. Would you mind posting it?