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N.Y. Ruling Overturns Bootleg Law



By Susan Butler

NEW YORK (Billboard) - Bootlegging live concerts in New York isn't a federal crime anymore, at least for the moment. A federal District Court on Sept. 24 held the law to be unconstitutional.



The 1994 anti-bootlegging law, enacted by Congress to fulfill its obligations under an international treaty, makes the unauthorized recording, transmission or distribution of live musical performances a crime.


The Recording Industry Assn. of America and law enforcement agencies sought to enforce this law by initiating an investigation of Jean Martignon, who operated a Manhattan record store, catalog service and Internet site. A federal grand jury indicted him in 2003 for selling bootlegs. (Names of the artists and the number of sales were not in the indictment and have not been made available.)


Now, Judge Harold Baer Jr. has dismissed the indictment, claiming that the law is "impermissible" because it grants greater protection to live recordings than allowed by federal copyright law, which protects only performances that are "fixed" in some medium (such as prerecorded music). The statute also grants "perpetual protection to live musical performances," which conflicts with the limited duration of copyright protection.


Of note is that the opinion did not mention publishers' rights to musical compositions performed during a concert. "The court was clearly wrong ... as applied to musical works," says Peter Felcher, general counsel to the National Music Publishers' Assn. "The unauthorized recording and sale of recordings of live performances of a musical work violate the copyright owners' exclusive rights to reproduce and distribute" copyrighted compositions.


The decision will "undoubtedly be appealed," Michael Elkin of Thelen, Reid & Priest in New York predicts. If the decision is not overturned, "the international legal community will wonder why America, (which) purports to lead the free world in protecting intellectual property, has to abrogate its international trade agreements."


The ruling does not create an open season for bootlegging; state law in New York still makes it a crime. But, as a result of the decision, federal investigations for artists and record labels in New York may be hampered. "This was the very section of law they were able to get the law enforcement authorities to grab on to in their effort to shut down the bootlegger," Elkin says.


As the court noted, the ruling has no effect on the "sister" law that imposes civil penalties -- the right to file a lawsuit -- for bootlegging. For many attorneys, this avenue does not have as much heft as a federal law.


"Live records are still the livelihood of many artists," says attorney Ron Bienstock of Bienstock & Michael in New York. But proving any substantial damages in court isn't easy -- and bootleggers know this. "No one is really scared of civil penalties," he says.


A spokeswoman for the U.S. Attorney's office in Manhattan said they are "reviewing the decision and will evaluate what steps ought to be taken going forward."


Reuters/Billboard