Compilations and Duplication

By Bruce E. Colfin & Jeffrey E. Jacobson

In past issues we’ve discussed some matters that are probably more of an academic interest to replicators and duplicators. This issue we take on a more practical topic: compilations. In a previous article, we spoke about the Recording Industry Association of America’s (R.I.A.A.) concerns about copyright infringement and the role of duplicators and replicators. The R.I.A.A.’s concerns, and the problems that may be experienced by manufacturers and replicators, may be multiplied, frequently more than ten fold, when a compilation master is duplicated without the safeguards that must be taken by a professional duplicator.

A compilation album is generally a full length album of sound recordings, the master recording of which is composed of individual recordings or tracks. Instead of an album’s worth of sound recordings that originate from a single band or recording group, a compilation album may consist of more than twenty (20) different sound recordings, each originating from a different recording label, artist or musical group. Soundtrack albums are often in the form of a compilation. A band’s greatest hits album may also be a compilation, having been compiled from a number of previously recorded and released tracks by a single recording artist or musical group. Generally though, as contemplated for this article, each of the sound recordings included in a compilation is considered to have originated from a completely different artist or recording company.

Compilations usually lack the ‘filler’ tracks or album cuts that may be included in a recording group’s or artist’s regular releases. Thus they tend to be big sellers. Audio only compilations also may include film soundtrack albums, and perhaps even some Broadway type theatrical recordings. Greatest hits or ‘hits’ only compilations, whether from one artist or several, are constantly huge sellers in the marketplace. Soundtracks are presently a large share of the total market of sound recordings.

Many Disc Jockeys (‘DJs’) actively desire and seek compilation recordings, including entire series or collections of recordings, to give them access to popular songs that are otherwise available only through retail purchases. The popularity of a recording, and the tremendous demand by the audience that the DJ have the most recent popular tunes, as well as a wide variety of styles, and music from different eras, makes the DJ a significant potential sale for producers of compilations.

This article will explore the concerns a duplicator or replicator should have when a client comes in the door with a master recording of a compilation. Our consideration of this practical topic was prompted by a R.I.A.A. release dated January 19, 1999, which stated that the R.I.A.A. is prosecuting a civil suit against Complete Music, Inc., a mobile disc jockey company that assembles compilations. Complete Music provides disc jockeys throughout the nation access to a music library which includes many different styles of music, including Rock, Pop, Rap, Country and R&B. The R.I.A.A. alleges that over a period of time Complete Music replicated hundreds of sound recordings for the disc jockey trade, all without first receiving proper authorization to do so. We have not seen the complaint, but apparently, the record companies had not authorized inclusion of many, if not all, of the recordings included on these newly manufactured compact disc compilations.

According to R.I.A.A., President and CEO Hilary Rosen “We’ve had several complaints from DJs who obtain the appropriate licenses legally”. Amongst the complaints is that the licensees have been paying all the costs involved in making a legitimate release; whereas companies like Complete Music, Inc., and others allegedly are avoiding the legal and appropriate costs and thus making illegitimate bootlegging profits at their expense.

So how does this initiative affect the replicator? A replicator can be held liable for copyright infringement if it is making copies of copyrighted materials that are lacking the proper authorizations.

Whether a compilation is a DJ master mix volume 12, a best of dance hits of the 80’s, or a best of rockin’ through the nineties, the party that produces and manufactures the master of that compilation is required to obtain authorizations for each one of the individual master recordings which have been compiled to form the “compilation”. Of course, in addition to authorization from the recording company that owns the original master, the compilation producer/label also must obtain mechanical licenses from publishers, or their representatives such as the Harry Fox Agency, to permit reproduction of the underlying musical composition(s).

Compilations are not restricted to audio only. In the present day of computers, digital media, compact discs and DVD (Digital Versatility Disc), a compilation may include many different forms of media, from audio and video to photographs, text, graphic art, fine art, literature, and on. A complicated compilation may entail seeking many different authorizations before the duplication master is brought to a replicator.

Beyond the two elsewhere discussed in this column a compiler may have to be concerned with obtaining synchronization licenses as well. If the duplication to be ordered is a format in which audio and video are together, Interactive Compact Discs, CD-Roms and DVD’s whether entertainment, education, or even games, would require synchronization licenses.

A synchronization license permits the accompaniment of a moving image with an underlying musical piece. Consequently, the “synch” license is required for videos, motion pictures, television, commercials, and other visuals combined with audio formats. The synch license is generally a grant from the publisher or his/her licensor to the producer of the visual work allowing the utilization of the underlying musical composition. Similar to a mechanical license it goes to the benefit of the publisher and/or writer (i.e. the owner of the copyright in the underlying work). Licensing agencies such as the Harry Fox Agency, AMRA, SESAC and ACEMLA issue synchronization licenses on behalf of their affiliated publishers and give fee quotations.

Although discussed in a previous issue, it is always worth mentioning again, copyright infringement confers strict liability upon an infringing duplication facility. This is true, despite the fact that a duplicator or replicator has, no knowledge whatsoever that even one track included in any materials being copied is without the authorization to do so, and has no intent to infringe upon another’s exclusive copyright. The act of copying without proper authority is all that is required for a replicator to be held liable for making those copies. Attempting to have a written indemnification from the compiler will not save the replicator from liability and the possibility of costly attorneys fees.

Replicators must take an affirmative stance and make efforts to find out if a party bringing in an order for duplication has acquired all the necessary rights and taken the requisite steps. It really is a question of reasonableness. The duplicating facility is the last party who can control the creation of unauthorized copies. The replicator may be obligated to regrettably refuse or turn away an order, or make copies at its peril, if it is reasonable for the facility to believe that all of the necessary rights have not been obtained prior to duplication.

In conclusion, replicators beware; in this age of audio visual new technologies all sorts of rights may be embedded in the master that is brought to be duplicated. Some facilities have come up with questionnaires to determine the origins of the materials being ordered. Some duplicators ask for assurances that any copyrightable materials contained on a master have been provided with proper consents. Perhaps copies of relevant documentation should be furnished and attached to the file. Precautions and due diligence must always be taken.

This article first appeared as Compilations Raise Bar for Order Scrutiny in the March 1999 issue of Replication News.

This article is published as a service of THE FIRM, Bruce Colfin Law, P.C., and covers news of interest to our friends and clients. It is not legal advice, nor intended as such.

© 1995-2007 Jacobson & Colfin, P.C.

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