The State of New York is strict about allowing original artists to maintain control of their work. New York attracts the best and brightest artists from all over the world, and the state wants to make sure that artists know that they can keep the right to profit from their performances. That makes it illegal to advertise or sell an unauthorized recording.
In order to lawfully sell an artistic performance, you need the permission of the person that owns or creates it. Otherwise, it’s unlawful to try and make a profit from another person’s artistic performance. There are several state laws that protect the rights of artists to profit from their work. One of these laws is called the advertisement or sale of unauthorized recordings in the first degree.
First-degree unauthorized sale
New York penal law 275.30 makes it illegal to sell an artistic work or even advertise an artistic work for sale if you don’t have legal authority. The law covers both sound recordings and video recordings. There are a few specific conditions that must apply in order for the offense to constitute unauthorized sale in the first degree.
First, you must knowingly advertise, sell, rent, distribute or possess an artistic recording without the consent of the owner. Second, you must either have a prior conviction for this offense in the last five years, or you must have made at least 1000 sound recordings or 100 video recordings. If you knowingly advertise, sell, rent, distribute or possess an artistic recording but you don’t have a prior conviction and you didn’t make enough copies, you might face charges in the second degree instead of in the first degree.
Fixed before Febuary 15, 1972
This law only applies to recordings that are originally fixed before February 15, 1972. New York law defines the word fixed. It means that the author must have recorded or saved the work in a way that it could be reproduced or disseminated. The author must have done so before February 15, 1972. If this isn’t the case, the person that made the unlawful recording might face charges of manufacture or sale of an unauthorized recording of a performance. That charge is similar but it doesn’t carry the same date restriction as New York Penal Law 275.30.
Possible penalties if you’re convicted
A conviction for advertisement or sale of unauthorized recordings in the first degree is a class E felony. That means that the court can make you spend up to four years in prison if you’re convicted as charged. Five years is the maximum possible term of probation. They can also order you to pay a fine and pay restitution if it’s appropriate.
If you’re facing this type of charge, the experienced NYC criminal lawyers at Spodek Law Group can help you make a plan to defend yourself. One common defense is that you didn’t know that you didn’t have permission to sell the work. When you possess unauthorized recordings, you must know that they’re unauthorized recordings. That means that it’s up to the state to prove what you knew and when you knew it. If the state’s attorney can’t prove this element of the crime, their entire case might fail.
You can attack the state’s proof on each other element of the charge. You can argue that you don’t have a prior conviction, or that you didn’t make the number of recordings that the law requires for a first-degree charge. You can also argue that someone else entirely had possession of the artistic work in question.
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