New York is one of the greatest places on earth for the arts and entertainment. Artists of all kinds create irreplaceable masterpieces. Many artists are professionals, and they rely on the honest sale of their work to make a living.
The State of New York has laws that aim to protect the rights of its artists to profit exclusively from their performances. That means it’s illegal in New York to record or otherwise sell a performance recording without the artist’s permission.
Manufacture or sale of an unauthorized recording
New York Penal Law 275.20 prohibits the manufacture or sale of an unauthorized recording. There are two different ways to be in violation of this law. For both versions of the law, you must meet one of two conditions in addition to satisfying the elements of the offense.
First, you can face charges of unauthorized recording in the first degree if you have a prior conviction for manufacturing an unauthorized recording. The prior conviction must be within the last five years. Second, you can face charges of unauthorized recording in the first degree if you make at least 1000 audio records or 100 video recordings.
If you meet either of these conditions you can face first-degree manufacture charges if you meet the elements of the offense for unlawful manufacture. If you meet the preconditions, the first way to manufacture or sell an unauthorized recording in the first degree is to knowingly record a performance. You have to make the recording with the plan to sell or rent it.
The other way to violate this law is to use a recording that’s already in existence for illegal sale. That means if you have any part in possessing, transporting, advertising or selling, you’re in violation of the law. Both violations amount to manufacture or sale of an unauthorized recording in the first degree. To violate this law, you must not have the consent of the performer. If the person with the rights to give you permission gives you the authority to record or sell the performance, you haven’t broken any laws.
Intent to sell
A common defense to this charge is that you don’t intend to sell or distribute the recordings. If you set out to buy a recording without caring if it’s legal or unlawfully copied, you haven’t violated this particular law. You might violate another law if you knowingly buy stolen goods, but for the purposes of New York Penal Law 275.20, you have to intend to profit from the recordings in your possession.
Our expert NYC criminal attorney team at Spodek Law Group knows that consent is a defense to this charge. If you had permission from the performer to make the recording, you’re free to record and sell the performance as you have permission to do so. This can work as a complete defense to the charges if you truly had permission to make or distribute the recording.
Manufacture or sale of an authorized recording in the first degree is a class E felony. That means that the court can order you to spend up to four years in prison. The court looks at a number of factors when they decide on a sentence. They consider the specific events of the crime as well as whether you have any prior convictions.
In addition to serving your sentence, you likely have to pay restitution for any damages that you cause. You also have to pay a fine. The court can order you to spend up to five years on probation.