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New York Penal Law 275.40: Failure to disclose the origin of a recording in the first degree

By Spodek Law Group | May 6, 2017
(Last Updated On: July 26, 2023)

Last Updated on: 26th July 2023, 08:56 pm

For those that are employed in the music or entertainment industry, one of the most significant issues that is faced is the issue of piracy. Piracy generally refers to either stealing and selling recorded music, or selling music without properly notating the origin of the music.
The New York Penal Code currently has about a dozen different laws that intend to protect against piracy. Of these laws, one of the most lenient is the failure to disclose the origin of a recording in the first degree. This crime can easily be met by omitting some information on a record release. The crime is likely violated frequently, but is very rarely enforced due to the difficulty to prove and low impact on a case-by-case basis.
Example of the Crime
The crime of failure to disclose the origin of a recording in the first degree is violated on a very consistent basis, but is not always enforced. An example of this would be if you were to record a musician at a live venue and then opted to sell the production on your own. If you were to omit some of the information of the origin, which could include the name of the artist, record label, manager, and other pertinent information, you could be in violation of the crime.
This crime is related to a number of other piracy laws that are in place. If you were to try and sell music without the permission of the artist, it could lead a variety of other, and more severe legal issues as well.
Defense of the Crime
If you have been charged with failure to disclose the origin of a recording in the first degree, it would be a good idea to hire NYC criminal lawyers that are experienced in piracy crime cases. In the majority of situations, the charges will be dropped if the charges are on a standalone basis. The primary defense of the crime is that the defendant did not purposely omit some information because they either didn’t know they were required to report certain information, or they did not know what the information was.
While the charge of failure to disclose the origin of a recording in the first degree is easy to defend, some of the related charges are harder. If you were caught selling material without the permission of the record label or artist, it could result in a more sever penalty and charge that is difficult to defend.
In general, the penalties for failure to disclose the origin of a recording in the first degree on a standalone basis are minimal. If you are convicted of this crime, you will likely be assessed a minor financial penalty. However, since it is a misdemeanor, you could face some minor jail time if you have been charged for the crime in the past. Those that are charged and convicted of more severe piracy penalties could face larger financial penalties and longer jail sentences.
In conclusion, failure to disclose the origin of a recording in the first degree is one of many piracy laws that the New York penal code has enforced in the past. While the charge on a standalone basis comes with very minor penalties, most people that are charged with it will be charged with other piracy penalties as well. If you have been charged with any piracy charge, it would be beneficial to contact a NYC criminal attorney. They could help to defend your case, which increases your chances of winning or receiving a more lenient punishment from the judge.

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.
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.
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.
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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