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May 6, 2017

New York Penal Law 275.35: Failure to disclose the origin of a recording in the second degree

There are several laws in the New York court system that are meant to curtail piracy. New York Penal Law 275.35 is one such law and it is a class A misdemeanor charge. This charge relates to selling a recording, whether it be a film, television program, concert, or other type of copyrighted material, without disclosing the name of the manufacturer, performer, or principal artist. The name of such should be clearly represented on the cover of the sold item, and failure to do so will result in a Failure to disclose the origin of a recording in the second degree charge. There must also be a proven knowledge that the perpetrator wittingly hid this information from prospective buyers.

A recording in this instance is considered to be anything that holds a video or audio account of such a performance or show. The New York legal system defines a recording as a record, tape, disc, video cassette, audio cassette, memory card, flash drive, hard drive, wire, film, or any other storage device upon which sounds and/or images are held. Piracy is defined as a digital or physical copy of an audio or visual performance without permission of the owner or performer, whereby the item is used for commercial purposes, such as turning a profit or cutting into profits of the official recording.

There are several related offenses. New York Penal Law 275.15 deals with Manufacture or sale of an unauthorized recording of a performance in the second degree. Another similar charge is New York Penal Law 275.25, or Advertisement or sale of unauthorized recordings in the second degree. Finally, New York Penal Law 275.33 is listed as Unauthorized operation of a recording device in a motion picture or live theater in the second degree.

Example

If, for example, an independent film was picked up by a major distributor, there could be confusion in the direction of the future packaging. For example, perhaps the cover art was already designed and ready for mainstream appeal, to the approval of the production house that purchased the rights to the film’s distribution. When preparing the art for mass production, the director and artist decided that the correct labelling of the new owners might detract longtime fans of their independent work. If these two willingly decided to not include the name of this distribution house, without the consent of those who own the rights to the film, then they are violation of Failure to disclose the origin of a recording in the second degree. If, instead the new distribution house agreed with the decision, then there is no violation. Also, if they forgot to include the name of the manufacturer by mistake, there is also no violation.

Defenses

The most important element to proving Failure to disclose the origin of a recording in the second degree is the aspect that the one in possession of the pirated material willingly disclosed the origin of the recording. The prosecution must be able to prove that one failed to include this information on purpose. A NYC criminal attorney could argue that the information, such as the origin of the recording and the name of the performer or copyright holder was forgotten. That is, that the names were not included by mistake. This defense provides a valid argument to the charge, as accidents are not the same as purposefully hiding something.

Sentence

New York Penal Law 275.35 is a class A misdemeanor and carries a prison term of up to one year, pending conviction. In addition, there may be a fine leveled and a probation term of up to three years.

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Phone

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Brooklyn, NY 11201

Phone

888-977-6335

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