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.
New York is famous for world-class art. The top performing artists from all over the world make their way to New York to create and perform their art. With these world-class performances come people who seek to illegally profit from the work of others.
In New York, it’s illegal to record someone else’s performance if you plan to sell it or distribute it for a profit. It’s also illegal to take a recording that already exists and participate in selling it or redistributing it for a profit. If you don’t have the permission of the performance’s owner to sell the performance, you can’t have any part in selling a recording of the performance for a profit.
Manufacture or sale of an unauthorized recording in the second degree
New York law looks at the specifics of the events surrounding the crime in order to determine the seriousness of the offense. Manufacture or sale of an unauthorized recording is divided into several different degrees of crime under New York law. The most serious is a charge in the first degree. Second degree is slightly less serious of an offense, but it’s still a class A misdemeanor under New York law and a serious matter.
Manufacture or sale of an unauthorized recording in the second degree is a violation of New York penal law 275.15. You commit this offense if you knowingly record a performance with a plan to sell it or rent it. You also commit this offense if you knowingly possess, move or advertise an unauthorized recording to others for sale or rent.
Tony is excited to go and see a new movie. He takes a smartphone with him that has a large storage capacity. While he watches the movie, Tony records it with his phone. He intends to copy the recording and sell it online.
Someone in the theater sees Tony make the recording. They alert the theater, and theater operators call law enforcement. When law enforcement arrives, Tony admits his plan to copy the recording and sell it. Tony has committed the manufacture of an unauthorized recording in the second degree. Tony can also face the related charge of unauthorized use of a recording device in a movie theater.
Let’s say that Tony succeeds in recording the video without getting caught. He takes the recording home and shares it with his sister Tammy. Tammy makes the copies of the recording. She posts advertisements for sale of the copies online. In this case, both Tony and Tammy are guilty of manufacture or sale of an unauthorized recording.
If you’re facing this charge, you can speak with the team of NYC criminal attorneys at Spodek Law Group about your defenses. One possible defense is that you didn’t know that you didn’t have authority to make the recordings. The law requires the state to prove that you acted knowing what you did. If you thought you had permission to make the recording or you didn’t know that the materials you had are unauthorized, you might also have a valid defense to the claim.
Manufacture or sale of an unauthorized recording in the second degree is a class A misdemeanor. That means that you risk serving a maximum of one year in jail if you’re convicted. You can also spend up to three years on probation and pay a fine. The exact penalties imposed by the court depend on the entire circumstances of the case and your criminal history. An experienced attorney can help you evaluate your case and your options.
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