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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

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October 25, 2010

A Personal Puzzler - Who Owns This Audio?

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Posted by Alan Wexelblat

This is an actual problem I have, and I've been unable to figure out a good answer to it, so I turn to you, my readers, for pointers and advice.

Some time ago, I made an audio recording of an author reading her own book. The recording was made with the author's knowledge and (verbal) permission. At the time, no audio version of the book existed. Since then, the book has been reprinted and an audio version of the reprint is now being sold.

Question: is my recording of her reading more like a performance recording, or more like an audio book? I don't think I can (nor do I plan to) sell copies of my recording, but I have considered putting it online for others to share. I suspect I'd be violating some copyright or other law if I did so, but I'm horribly unclear on the relationship of recordings-of-live-performances versus staged recordings such as audio books.

Comments (6) + TrackBacks (0) | Category: IP Use


COMMENTS

1. Emily on October 25, 2010 10:22 AM writes...

Hi,

I think this will be clarified in whatever copyright agreement was signed by the author with the publisher. The copyright will be in the written word, regardless of the performance purpose / staged recording aspect, and if the author assigned all rights to the publisher then it is up to the publisher to grant permission to you to disseminate your recording.

You, the author and the publisher may be able to negotiate some sort of deal though as it will be quite unique to have the author reading from her own book.

I'd advise checking with the author and publisher, as the key to this lies in the agreement which the two of them have signed.

Emily

Permalink to Comment

2. Alasdair on October 25, 2010 11:12 AM writes...

Going through logically. Your audio recording is a derivative work of the author's copyrighted work, which you were given the permission to create and impliedly to use personally (but presumably; not to disseminate) that recording. All rights in the original work ( the book) are now presumably governed by the relationship between the author and publisher and so you would need to get permission to post that recording online.

Permalink to Comment

3. T. D. on October 25, 2010 1:11 PM writes...

You, the writer, and anyone else who helped in the creation of the recording are equal joint-authors of the master (sound recording), which as Alasdair pointed out, is a derivative of the written book. Whether it's a performance recording or audio book is immaterial as there is no difference between the two.

As was also previously pointed out, the license to create the recording was impliedly a limited one, though even if not, the license was only to create the recording and not to duplicate, distribute or perform the recording. While you may have a copyright interest in the recording, it is a somewhat hollow right since the author/publisher retains exclusive ownership of the original book that is "performed" in the recording.

It is not terribly unlike the song vs. master. A songwriter may (and is required to) grant a mechanical license, permitting a recording artist to record the song. The mechanical license permits the recording artist to sell CDs/downloads at a predetermined rate. However, the artist cannot create a music video or license the recording for use in film without a further license from the songwriter.

While there is no compulsory license requiring the author of the book to permit you to make the recording as there is with a song, she granted you that right, though any further use of that recording (including gratis performance or download) is subject to further permission.

Permalink to Comment

4. DrWex on October 25, 2010 3:41 PM writes...

Thank you, that's quite clear. And I like that it fits with the spirit of what I think was intended - a friendly "sure, go ahead and record this" with the implication that the recording would be a personal memento.

Permalink to Comment

5. Douglas (Watkins) on October 27, 2010 11:38 AM writes...

I would get permission from the author before i put it online.

Permalink to Comment

6. Vincent on October 31, 2010 11:37 AM writes...

given your update comment about the nature of the agreement to record, it sounds as though you don't have a copyright.
This is very similar to Forward v. Thorogood, 985 F.2d 604 (1st Cir. 1993).
That case goes against what T.D. said above about a joint work. It determined the mechanical act of recording did not involve any artistic input and thus did not create any joint ownership.
You own the physical tape and can treat it as yours under first sale doctrine, but the author owns the copyright and if she subsequently grants a license to someone else, it has no effect on the tape you have.

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