The State of New York wants to make sure that people who perform artistically can profit from their own performances. That makes it a crime for a person to profit unlawfully from another person’s performance. You can’t record someone’s performance and sell it or even plan to sell it unless you have the rights or permission to do so.
Creating, transferring or participating in the creation of a recording of someone’s performance without the legal right to do so is called manufacture of unauthorized recordings. There are several different levels of severity of the offense under New York law. The exact crime and the possible penalties depend on the specific events involved in the offense.
There are several different degrees of manufacture of unauthorized recordings. Second-degree manufacture of unauthorized recordings mostly has to do with the transfer of unlawfully-recorded performances. Manufacture of unauthorized recordings in the second degree is a violation of New York penal law § 275.05. Any time you transfer a recording unlawfully for a profit, you’re likely manufacturing an unauthorized recording in the second degree.
What does it mean to transfer?
There are a few different ways that you can violate this law. They all involve transferring a recording unlawfully. Article 275 of New York’s penal law doesn’t specifically define transfer, but the common definition means to move something from one place to another. That means if you copy a recording, upload it or otherwise reproduce it for someone else with the intent of making a profit, you’re likely in violation of this law.
Shanna runs a corner hobby store. She hears a new performing artist, Starzy, performing a song. She thinks the song is a hit.
Rather than purchase and stock the CD in her store, Shanna buys one of Starzy’s CDs. She makes copies of the CD at home. Then, she sells the CDs in her store. Shanna is in violation of manufacturing an unauthorized recording in the second degree.
You can also profit from another product
You can violate this law without directly profiting from the recording itself. If you use the recording to profit from another product or in another way, it’s also a violation of this law. It doesn’t matter if you’re not directly selling the recording to make the profit.
For example, Amos is the owner of the Amos Shoe Company. Amos wants to make a television commercial. He likes a song by famous rapper DaShoes. The song is called “Lace, Lace ‘Em Up.”
Without getting permission from DaShoes, Amos uses “Lace, Lace ‘Em Up” in his commercial. Amos sells lots of shoes. Amos is in violation of manufacturing an unauthorized recording in the second degree. He didn’t profit directly from selling “Lace, Lace ‘Em Up,” but he transferred a song without the owner’s consent to do so.
Manufacturing an unauthorized recording in the second degree is a class A misdemeanor. The maximum penalty is one year in jail. The court might order you to pay restitution to the person or people that you hurt. You can also pay a fine and serve three years on probation. If you’re facing this charge or a similar charge, an NYC criminal lawyer can help you evaluate your options.
A common defense to this charge is that you have the permission of the owner to transfer the recording for a profit. You can also argue that you never meant to profit from the recording. You might also argue that you never transferred the recording.
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