Technical question -- NO speculation, please

Bob Hoffnar · Post by **Bob Hoffnar** » 3 Feb 2009 6:48 pm

Another possibility is not so legal but will work fine. The Star's people are finding you with a general internet search of the song titles and star's name. Just change the name of the band and tune when you post it. Call it "Ray Del and the Full Montees" playing "Moon over Pittsburg" or something. If they contact you about it just ignore them.
You could pretend you are a lawyer or get a lawyer and write them about the work under false pretences bit. Threaten to sue for back pay and future royalties if they don't back off.

Eric West · Post by **Eric West** » 3 Feb 2009 8:59 pm

I think I misunderstood the post too.

I'm with Mr Mudgett.

You didn't sign away any of your rights, and if you didn't, as is customary in my experience, for a sum, or due consideration, then The Star is probably more liable for "recording you" and selling it or distributing it without your consent. I believe Oregon Law might even have an ORS in that vein.

Hmm...

Interesting.

It is, though easier to navigate these things with a concrete agreement up front.

Anyhow, you're 'in the biz'.. See what the old ORS says about it.

Good luck.

I just got a Marshall Half Stack for the next PSG Jam. Mostly to plug your Ricky into so we can HEAR YOU.

EJL

John Steele (deceased) · Post by **John Steele (deceased)** » 3 Feb 2009 10:04 pm

Regarding the initial "playing for nothing" aspect,

If you don't respect yourself, don't expect anybody else to.

-John

Walter Killam · Post by **Walter Killam** » 3 Feb 2009 10:45 pm

Hi Ray,

Once again, I am not a lawyer, or union musician, please do not construe this as legal advice.

As I recall from my Broadcast Law classes ten+ years ago -- the likely outcome of the court case you seem to be asking about is:

Whoever paid for the session (this may not be the "star", or the rights may have been sold to a third party) owns rights to the music produced. You were work for hire, and the "star" will argue that studio experience was your compensation. Most lower courts will uphold this precedent. The expense of proving that you have been wronged will pay for many sessions in excellent recording studios.

Some of the questions I would have are:

Is the owner likely to sue? -- if so you can post the songs until he/she hits you with a cease & desist order. After which they will have to prove ACTUAL damages in terms of how much money they lost to your illegal distribution. If they won't sue then post away (be VERY sure before you take this route.)

Are you willing to pay mechanical rights to distribute the recordings? - If so, it really wouldn't be terribly expensive (say between 1 & 5k)to pay an agency for the 2-3 songs and send CD copies to the people you want to hear it.

You may have some rights to distribute portions of the recordings as examples of your work under fair use rules, however, if the "star" gets a bug in his colon, you have opened yourself up to legal harrassment.

Any time you go to court you roll the dice.

In short, I'll stick with my original comments:

call it a day,

If you want to have a recording you can distribute with reasonable impunity, book the studio and invite the "star" to perform on your recording quid pro quo. This will seperate the men from the boys.

good luck.

BTW, I would be happy to play any sessions of yours I can get to gratis.

Post by **Dave Mudgett** » 3 Feb 2009 11:46 pm

I think this probly won't get resolved without alot of money and lawyers though

When you get right down to cases - do these people have enough money to take you to court? You're not dealing with multi-million/billion dollar corporations. Most of the musicians I know couldn't match me dollar for dollar in court. And what if they do? Right is right. Talk to a lawyer, but I think you've been wronged. Don't let them bully you.

After which they will have to prove ACTUAL damages in terms of how much money they lost to your illegal distribution.

That assumes that your distribution (of music that you contributed to, without compensation, under false pretenses) is illegal. Bah, humbug!

If you let them walk over you, they will do it every time. I have more epithets that I will withhold.

IMHO. Don't believe me, but talk to a lawyer and all that.

Why do I go on? Because I've been here, and I emphatically do not countenance this garbage. This is precisely what's wrong with the music biz. If we continue to be doormats, we will continue to be treated as one.

Seriously - you need to decide what to do yourself. But you asked for opinions - and you got 'em.

Edward Meisse · Post by **Edward Meisse** » 4 Feb 2009 12:06 am

Dave Mudgett wrote:
The story was: An elderly gentleman wanted to make a CD for his legacy, for his family and kids to have after he was gone; something he could leave behind to be remembered by.

It was just a little family project, nothing more.
That tells me everything I needed to hear. You never agreed to commercial use of your contributions. The "star" has no right to sell the results of this project. You entered into an agreement to play for free under false pretenses, and I think you have rights.

Were it me, I would tell him to either allow me to post some clips or take me out of the mix, pure and simple. I would encourage the other players to do the same.

I know it's not about money. But the idea that someone can 1) lure players to play under the pretense of an informal, private, non-commercial project without pay; 2) then turn around and turn it into a public, commercial project and sell CDs; and then 3) tell the players that donated their time under false pretenses that they have no rights to anything - this is abject nonsense. IMO, this person has no commercial rights to your, or the other players', work, just the same as you have no rights to his.

Yes, maybe this is hard-nosed, but these people are playing hardball. If you don't assert your rights, you will lose them for certain.

I suspected that what you really wanted was to be able to post a few clips of your playing. I would play hardball and demand a quid pro quo for changing the terms of your agreement to play. You have nothing to lose.

...just put the tunes you wish up on your site/s and The Star be damned!
Not being a lawyer, I won't advise this. But on the other hand - since I'd want to see this adjudicated, maybe that isn't so farfetched after all. I think you have every right to say he shouldn't be selling these.

Again - I'm no lawyer. But it seems to me that he's running as big a risk selling these without agreement from the artists that performed on it as much as you'd be risking posting these without his permission.

Another object lesson that no good deed goes unpunished. Right, Eric?

My opinion, YMMV, blah blah, and more blah blah blah.

Now that I know the story. I second this.

Donny Hinson · Post by **Donny Hinson** » 4 Feb 2009 5:10 am

The story was: An elderly gentleman wanted to make a CD for his legacy, for his family and kids to have after he was gone; something he could leave behind to be remembered by.

It was just a little family project, nothing more.

Ray, if you can't prove that, you don't have a leg to stand on. In effect, it's his word against yours. You've also admitted here, on a public forum, that he gave you CD's in lieu of money, so you really didn't "donate" your services. You were compensated!

I also find it somewhat hard to understand how you've been a member of this Forum for so long, and yet you seem to know almost nothing about copyright laws? I suggest you read the "MUSIC" section once in awhile, as this stuff has been discussed and argued about for the past 9 years.

Walter Killam · Post by **Walter Killam** » 4 Feb 2009 8:13 am

Hi Dave,

I agree that being a doormat is not a good place to be, however, the session is already in the can. Possession being 9/10ths of the law and all that if this goes to court, the court will tend to lean to the rights of the product owner, and will require compelling evidence to revoke those rights and reassign them to someone else (ie one of the session players). You can't put this poop back in the horse! the question to me at least becomes:

1 - is pressing the issue of rights to distribution to this work worth losing a friend (the "star")over,

2 - is it worth the money and time that will be spent pursuing a legal outcome that is by no means pre determined.

If the answer to either of these questions is NO, then this is not worth following through to an uncertain resolution.

Ray, speaking from personal experience, I think your best move is to drop any pursuit of posting these recordings, in a year or 2 the "star/owner" may change their mind and realize that they were silly to inhibit your promotion of their product. If you post (read publish) it anywhere public then distribution can be assumed by the court, and you can be held liable for actual damages. Lawyers fees are likely to cost far more than any damages that occur. Next time get something in writing that states that you have the right to distribute recordings that you participated on for the purposes of self promotion.

Jim Cohen · Post by **Jim Cohen** » 4 Feb 2009 8:26 am

You know, I just re-read the title of this thread, which is "Technical Question -- NO Speculation Please"

Well! I fail to see how this is any kind of a "technical" question. If anything, it is a legal question, best directed to attorneys rather than to a group of online musicians. And EVERYTHING that has been, and indeed, even could be posted in response to your question IS, by necessity, speculative.

Having said that, Ray, with all due respect, you've been alive and in this industry long enough to know better; you establish clear expectations in advance about what one gets for one's work effort, not scramble around after the fact. If you fail to do that, then there's only one direction in which to point the finger.

Sorry for my bluntness, Ray. I do enjoy your playing, though!

Ray Montee (RIP) · Post by **Ray Montee (RIP)** » 4 Feb 2009 8:52 am

Many thanks to each of you for sharing your views on this most frustrating issue.

For the record........I was/am not, interested in a compensation conflict.

I just wanted to know what you might have done in the past, or would you do at this time, with regard to playing portions of the CD's aforementioned on a public venue.

This having largely been answered, I thank you.
Much appreciated.

Post by **Dave Mudgett** » 4 Feb 2009 9:24 am

Ray has already said that he doesn't want money or conflict, so the issue is not about the pragmatics of going to court. I hear him asking if he has any rights with respect to this recording, and I agree that this is a reasonable question.

Ray, if you can't prove that, you don't have a leg to stand on. In effect, it's his word against yours. You've also admitted here, on a public forum, that he gave you CD's in lieu of money, so you really didn't "donate" your services. You were compensated!

I wonder on both points, Donny. The onus is on the person or organization releasing music commercially to prove that they have copyrights cleared. Why do you think that just because someone is on a recording that someone else automatically has the right to release it commercially? In the absence of mutually agreed upon compensation, why is it obvious that the performers have signed over their rights?

I also don't see why somebody giving a band member CDs necessarily constitutes "payment" for the right to release their contribution on a commercial recording. It strikes even my non-lawyer mind that this only constitutes such a payment for rights to the performance if both parties agree to that. I didn't hear Ray say he agreed to this as payment. Just because this guy says it's payment doesn't make it so.

Whenever the issue of performance rights or copyright comes up here, about the only thing I ever hear is the big-music world point of view, which revolves entirely around money. To my way of thinking, people can enter into agreements centered around things besides money. If someone asks me to play for a strictly private archival recording under one set of terms that we agree on, and then decides later that he wants to release it commercially - as far as I'm concerned it's a new ballgame. If they don't like my terms, they can remove my contribution and get someone else to do it.

I think this kind of thing comes up pretty often in local music situations. Of course, a written contract spelling everything out is a much better idea. But I don't think it's reasonable to argue that the right to commercially release a performers' contribution to a recording is automatically assigned by default to the person who owns the physical recording. The phrase "possession is 9/10ths of the law" is a nice, catchy phrase - but it strikes me that the DMCA has changed that landscape quite a bit. Try asserting that because you recorded a band who you payed to play at a party at your house, you automatically have the legal right to release it commercially, even if they consented to the recording for private purposes. Nonsense, IMHO.

All my opinions, as usual. I definitely would be interested in hearing a lawyer's take on this question.

Donny Hinson · Post by **Donny Hinson** » 4 Feb 2009 10:42 am

Why do you think that just because someone is on a recording that someone else automatically has the right to release it commercially?

Dave, I thought I spelled that out. We're only hearing one side of all this. We don't really know what's hearsay and what's fact, and we don't even know if any part of Ray's story can be substantiated. I'm trying to be objective, so I'm not going to side with him just because he's a steel player.

I only see one thing as certain in all this diatribe, and that is that the copyright holder of the songs is the only one whose case is supported by federal law. If the "star" didn't write the songs, but had CD's mass-produced and distributed (and they subsequently became hits), you can also bet your bippy he had the songs licensed! A judge would give a lot of weight to the person who had these facts on his side. It sounds like the "star" was someone who had recorded before. If that's the case, then the stuff about it being a "family project - something to leave behind" sounds pretty far-fetched.

Thirty songs? Four or five recording sessions? That doesn't sound like a "family" anything, to me.

Pete Burak · Post by **Pete Burak** » 4 Feb 2009 12:12 pm

Hi Ray,
fwiw, IMHO, Manny K wouldn't have won any award if it wasn't for you asking the Steel Guitar Forum community to vote for him.
He just doesn't have award winning vocal chops, imho.
Your playing is where the award winning chops are.
If it were me, I would do whatever I want with the recordings... put them on YouTube or my own website, etc.
If it's a problem someone will let you know by putting cash on the barrelhead to put a stop to it.
Talk is cheap.
In this economy, I would call their bluff.
Just me, though.

Post by **Dave Mudgett** » 4 Feb 2009 1:12 pm

Donny, I'm not taking anybody's side, per se. I agree that there are a lot of unknowns here. That's precisely why I am very reluctant to state that "Ray has no rights here.", as many have. What I did say is that if it's as Ray says it is, then I think he may have some rights. Of course, that's just an opinion, and worth nothing more than the reasoning behind it.

You're arguing that you believe, in principle, that a player must substantiate that he specifically withheld permission to use his contribution in a commercial release. I'm saying that I believe, in principle, the singer/producer of this record somehow needs to substantiate that Ray gave permission to use his contribution in a commercial release, similar to the way someone would need to get permission from a band they recorded to legally release that recording commercially. I frame this as a question, not an answer.

Obviously I have an opinion on this. But I don't have the legal expertise to answer this question definitively. I don't even know if the law is absolutely definitive on it. I only argue that I don't think your conclusion is at all obvious.

Jim Cohen · Post by **Jim Cohen** » 4 Feb 2009 1:59 pm

Speculative.

b0b · Post by **b0b** » 4 Feb 2009 2:08 pm

Did you sign anything giving them permission to use your steel parts on their CD? If so, you're out of luck. If not, you can get a court order to block sales of the CD as it was not a "work for hire" like most studio work. You weren't hired or compensated. You still own the rights to your creative work.

Just threatening to block sales of the CD could open the door to negotiation. In lieu of compensation, you would be open to an agreement allowing you to post songs on your web site, for example.

Ray Montee (RIP) · Post by **Ray Montee (RIP)** » 4 Feb 2009 2:42 pm

THANKS b0b!

Now that is what I was hoping someone might bring up but, I have no legal knowledge or education, so I was really shakey on that point.

No written agreement between me and/or ANYONE else! It was to be a family thingie....... Talk about making it a commercial venture started drifting thro' the outer studio while we were recording.

All I want to do is to be able to play a few of the 30 some songs, on my You Tube site, so that my viewers can have a better idea of what I have/can do.

THANKS again to Pete and all the others too.

Rick Aiello · Post by **Rick Aiello** » 4 Feb 2009 3:37 pm

Nice Aloha Spirit there Manny ...

As Pete B. said ...

Those CD's would have never won three ... Hawaiian Music Awards ... w/o Ray playing ... and this SGF voting because of Ray ...

I thought it was bad enough when he wouldn't take you over to Hawaii to the awards ceremony ... at least one of the three trips ...

But to not "let" you put up a few of the tunes to showcase your talent ... is just wrong.

Hey ... but at least he put your photo on his site ...

Did he ask your permission to use it

Tom Quinn · Post by **Tom Quinn** » 4 Feb 2009 4:32 pm

Didn't know there were any "stars" in Portland... :- ) Having said that, get it in writing before you crack the case. Otherwise, you are on your own...

Eric West · Post by **Eric West** » 4 Feb 2009 5:09 pm

Ray.

I do second what Pete said.

You have a case under the Oregon Revised Statutes regarding the use of recorded "conversations" for profit without written consent. I'd have to look it up.

Or under this puppy from the Federal Copyright law..

SEC. 513. CRIMINAL PENALTIES FOR UNAUTHORIZED FIXATION OF AND TRAFFICKING IN
SOUND RECORDINGS AND MUSIC VIDEOS OR LIVE MUSICAL PERFORMANCES.

(a) In General.--Chapter 113 of title 18, United States Code, is amended
by inserting after section 2319 the following:

"Sec. 2319A. Unauthorized fixation of and trafficking in sound recordings and
music videos of live musical performances

"(a) Offense.--Whoever, without the consent of the performer or
performers involved, knowingly and for purposes of commercial advantage or
private financial gain--

I think I'd have some fun with the guy.

You just seem to want to enjoy posting your playing for nothing but your own satisfaction.

I think "The Star" has turned more than a few buckos, and just can't keep from playing big shot.

Screw him.

Let us know how it turns out..

EJL

b0b · Post by **b0b** » 4 Feb 2009 5:27 pm

Ray, you've said that this "star" has recalled his CDs from commercial outlets. Perhaps you aren't the first musician to complain. All of the musicians would have to give their implicit consent for this recording to be commercially viable. Any one of them can file suit for copyright violation.

But it cuts both ways! If you want to put these songs on a web site, you can only get away with it as long as NOBODY involved in the project objects.

If I were you I'd forget about putting the songs online, but I might also make sure that the "star" didn't make a penny selling your work. He should have done the right thing up front. He didn't, and now he has a recording that NOBODY, not even him, has the right to publish.

Ray Montee (RIP) · Post by **Ray Montee (RIP)** » 4 Feb 2009 7:05 pm

b0b:

Many thanks for the HOT NEW IDEA!

I know without compromise that the original group of musicians were upset that they didn't get paid for the recording session. That's why they refused to be a part of the last session and why another group of "friends' rushed in to take their place.

He did tell me just the other day that he'd had conflicts with YOUTUBE and therefore did not want his CD involved with YOUTUBE. He was recalling his stock from Amazon too!

You've brought up a good point and I surely do appreciate YOUR comments and recommendations. This type of thinking is precisely WHY I posted this topic on the FORUM and YOUR comments are most timely and worthwhile. THANK YOU!

Post by **Dave Mudgett** » 4 Feb 2009 7:28 pm

Yes, b0b's point is precisely the theory I've been making, and I agree with his take. The idea of using this as a stick to get a reasonable response from them was implicit.

But being a legal matter and not being a lawyer, I don't think it's obvious (to me, at least) how federal or state laws exactly define a "work for hire" and precisely what constitutes "permission" or "payment". Of course, written permission would seem sufficient, but I don't know if it's necessary.

I do know one thing - if I was this 'artist', I would never have released a CD using the services of players that I didn't pay without getting formal, written permission. I think they are being extremely unreasonable to deny you permission to post a few tunes to demo your contributions when it's obvious you are very happy to accept this as a quid pro quo for your permission to use your contribution without monetary payment.

Bo Legg · Post by **Bo Legg** » 4 Feb 2009 8:24 pm

Ray your résumé is plenty good without this addition and it’s obvious you’re not going to get paid. As they say on the Sopranos “forget a bout it”.

Rich Peterson · Post by **Rich Peterson** » 5 Feb 2009 10:00 am

"A verbal contract ain't worth the paper it's printed on."

THE STAR apparently had not licenced the songs, so the publishers forced him to stop selling the CD's on Amazon.com and having them posted on YouTube. There have been a lot of videos pulled because of copyright infringement since Alfred Publishing acquired Warner Music Group. Warner is getting the blame, but YouTube even had to pull a vid of a teenage girl playing "Winter Wonderland" on her piano.

THE STAR doesn't want you posting the music online because he will get sued by the publisher. Simple as that. You are not going to get permission to do that unless you negotiate permission with the publisher yourself.

Apparently the CDs are now being sold on CDBaby.com. I suggest that you and the other musicians share the cost of having a lawyer write to him asking for payment for studio time and demanding financial records of all revenue arising from the sessions. Since you will be sharing the legal expence and THE STAR has to pay his lawyer out of his own pocket, he may negotiate rather than have legal fees eat up all profits.

The Steel Guitar Forum

Technical question -- NO speculation, please

takin the gloves off!

friends or money?

Replies appreciated.

Now that's starting to make some sense!

The continuing sage about "freebie" CD's