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| Chilling Effects Clearinghouse > Piracy or Copyright Infringement > Notices > The Grey Album and Misappropriation of Capitol Records, Inc.'s Sound Recordings (NoticeID 1142, http://chillingeffects.org/N/1142) | Location: https://www.chillingeffects.org/piracy/notice.cgi?NoticeID=1142 |
February 23, 2004
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Sender Information: |
Recipient Information:
[Recipient]
[Private]
USA
Sent via: email
Re: The Grey Album and Misappropriation of Capitol Records, Inc.'s Sound Recordings
We are counsel to Capitol Records, Inc. ("Capitol"), the exclusive U.S. licensee and/or owner and distributor of musical sound recordings featuring performances by The Beatles. We write concerning your announced intention of distributing an unlawful and unauthorized sound recording known as The Grey Album on February 24, 2004. This infringing album contains extensive samples from recorded performances by the Beatles, including "Long, Long, Long," "While My Guitar Gently Weeps," "Glass Onion," "Savoy Truffle," "Mother Nature's Son," "Helter Skelter," "Julia," "Happiness is Warm Gun," "Piggies," "Dear Prudence," "Rocky Raccoon," "Revolution 1," "Revolution 9," "I'm So Tired," and "Cry Baby Cry" (the "Capitol Recordings"). Distribution of The Grey Album constitutes a serious violation of Capitol's rights in the Capitol Recordings - as well as the valuable intellectual property rights of other artists, music publishers, and/or record companies - and will subject you to serious legal remedies for willful violation of the laws. We accordingly demand that you cease any plans or efforts to distribute or publicly perform this unlawful recording. As you are no doubt aware, The Grey Album is an amalgamation created by an individual named Brian Burton (a/k/a Danger Mouse) of Jay-Z's The Black Album and the Beatles' self-titled 1968 album commonly known as The White Album. There is no dispute that The Grey Album incorporates Capitol Recordings, as Mr. Burton acknowledges on his website (http://www.djdangermouse.com) that "every kick, snare, and chord is taken from the Beatles White Album and is in their original recording somwhere [sic]." There is also no dispute that Mr. Burton never requested permission from any of the rights-holders to create The Grey Album. Capitol has demanded that Mr. Burton cease distribution of The Grey Album, and Mr. Burton has indicated publicly that he intends to comply with Capitol's demands. As reported by Reuters on February 17, 2004: Danger Mouse said he created the record strictly as a limited-edition promotional item, with only a few thousand copies pressed . . . . The artist, whose real name is Brian Burton, has agreed to comply with the order and will no longer distribute copies. "He just wanted people to hear the record," says a spokesman in the U.K. We are aware of the so-called "Grey Tuesday" event, sponsored by http://www.downhillbattle.org and described on the http://www.greytuesday.org website as a "day of coordinated civil disobedience" in which participating sites will make the unlawful Grey Album available for downloading, distribution, and file-sharing in order to force "reforms to copyright law that can make sampling legal." Your site is listed among those that will engage in this openly unlawful conduct. Any unauthorized distribution, reproduction, public performance, and/or other exploitation of The Grey Album will constitute, among other things, common law copyright infringement/misappropriation, unfair competition, and unjust enrichment rendering you and anyone engaged with you in such acts liable for all of the remedies provided by relevant laws. These remedies include but are not limited to preliminary and permanent injunctive relief as well as monetary and punitive damages necessary to remedy your openly willful violation of Capitol's rights. 2. identify the names and addresses of any third parties who have supplied you with physical or digital copies of The Grey Album or who are otherwise involved in The Grey Album's unauthorized distribution, reproduction, public performance, or other exploitation; 3. provide Capitol with an accounting of all units of The Grey Album that have been distributed via your website, either physically or digitally, and of all instances of public performance of The Grey Album rendered via your website; and 4. preserve any and all documents and records relating to this matter, including but not limited to electronic data and other information which may be relevant/discoverable in the event of litigation. In addition, to the extent that you have already commenced distribution of The Grey Album, you must make payment to Capitol in an amount to be discussed. We demand that you contact us immediately. Unless we receive full and immediate compliance with these demands, Capitol will be forced to consider pursuing any and all available remedies at law and in equity.
Reuters has also quoted Mr. Burton as saying, "[t]his wasn't supposed to happen . . . . I just sent out a few tracks (and) now online stores are selling it and people are downloading it all over the place." By further distributing The Grey Album, you will not only be violating the rights of those who own the recordings and compositions at issue. You will also be interfering with the intention of the very artist whose rights you purport to vindicate.
We accordingly demand you:
1. cease and desist from the actual or intended distribution, reproduction, public performance or other exploitation of The Grey Album and any other unauthorized uses of the Capitol Recordings or any other sound recordings owned and/or controlled by Capitol;
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Question: Does a cease and desist letter recipient have a duty to remove materials alleged to infringe copyright? Answer: The cease and desist letter gives its recipient ("you") notice that someone is claiming something you've done or something on your site infringes a copyright. If the materials that are the subject of the notice are in fact infringing, then you do have a duty to remove them, although there may be statutory provisions (DMCA Safe Harbor) that protect you from a lawsuit if the materials were posted by someone else. You may have to give the poster notice of the complaint. If you do not believe that the materials are infringing, or if you believe that you are making fair use of the materials, you may choose to take the risk of not removing the materials, but a lawsuit might follow in which the complainer tries to prove they they are right and you are wrong. If the accuser obtains a court order, then you must take down the materials. Question: What is the scope of copyright in sound recordings? Answer: The copyright holder in a sound recording has the exclusive right to copy it, to create derivative works based on it, to distribute copies to the public, and "to perform the copyrighted work publicly by means of a digital audio transmission." This last right covers digital transmissions between distant places, like webcasts and digital satellite radio. Note that, unlike the copyright holder in a musical work, the copyright holder in a sound recording does not have the general exclusive right to perform the work publicly. This means that when, for example, a radio station or a dance club plays a song, they must acquire a license from the owner of the copyright in the musical work (usually the composer or her agent), but not from the owner of the copyright in the sound recording (usually the record company). Federal copyright protection does not extend to sound recordings created before February 15, 1972. However, these recordings are often covered by various state statutory and common law copyrights. Question: What is "willful infringement"? Answer: Willful infringement occurs when the infringer knows that the material they are copying is protected by copyright. In many cases, the penalties for copyright infringement are greater if the infringement is willful. Question: What does it mean to "publicly perform" a work?
Answer: According to the Copyright Act, 17 U.S.C. 101, "public performance" means:
Question: Are mash-ups illegal? Answer: A "mash-up" is created when an artist takes sound recordings of two different preexisting songs and combines elements from each to form a new work. Of course, not all mash-ups are illegal; if the artist has permission from the owners of the sound recordings and musical works for both songs, the mash-up is clearly legal. Without permission from music publishers and record companies, mash-ups will often infringe, among other things, the copyright owner's exclusive right to "prepare derivative works". However, in some cases, a court could find that the mash-up is a parody or other fair use of one or both works, reducing or eliminating infringement liability. Question: What is unfair competition? Answer: "Unfair competition" covers a wide range of kinds of unjust business behavior---so many kinds, in fact, that it is impossible to give one simple general definition. In essence, unfair competition means trademark infringement or false advertising to confuse the public. In most states, only commercial competitors can be engaged in "unfair competition." Question: What is "unjust enrichment"? Answer: Unjust enrichment occurs when one party receives money or other value that they have not earned at the expense of another party. The party who suffered from the windfall can sue to recover their losses. Question: What is a preliminary injunction? Answer: An order by the court requiring the defendant to do or refrain from doing some action pending a full trial on the merits of the lawsuit. Sometimes in intellectual property litigation, the property owner, soon after filing the complaint, will make a motion for a preliminary injunction requiring the defendant to stop doing those things the plaintiff alleges are infringing the plaintiff's intellectual property rights. Question: What are "punitive damages"? Answer: Punitive damages are damages intended to punish and deter similar wrongful conduct rather than merely compensate for losses suffered by the plaintiff (called compensatory damages). Punitive damages are authorized when the defendant acted with recklessness, malice, or deceit. As for the amount of punitive damages awardable, the Supreme Court has held that three guidelines help determine whether a punitive-damages award violates constitutional due process: (1) the reprehensibility of the conduct being punished; (2) the reasonableness of the relationship between the harm and the award; and (3) the difference between the award and the civil penalties authorized in comparable cases." BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589 (1996). Question: Does a cease and desist letter recipient have a duty to remove materials alleged to infringe copyright? Answer: The cease and desist letter gives its recipient ("you") notice that someone is claiming something you've done or something on your site infringes a copyright. If the materials that are the subject of the notice are in fact infringing, then you do have a duty to remove them, although there may be statutory provisions (DMCA Safe Harbor) that protect you from a lawsuit if the materials were posted by someone else. You may have to give the poster notice of the complaint. If you do not believe that the materials are infringing, or if you believe that you are making fair use of the materials, you may choose to take the risk of not removing the materials, but a lawsuit might follow in which the complainer tries to prove they they are right and you are wrong. If the accuser obtains a court order, then you must take down the materials. Question: Must I disclose anyone else's name or address in response to a cease-and-desist letter? Answer: No. Without a court order, a copyright holder cannot force you to disclose the name or contact information of anyone. If the sender of the letter does file suit, they may be able to get a court order forcing you to identify other people involved in the alleged infringement. Question: This letter says I have to pay them some money right away. Do I? Answer: Unless a court has ordered you to pay them or you've made a promise to pay that you haven't fulfilled, you don't have to obey a demand for money contained in a cease-and-desist letter. Sometimes, cease-and-desist letters include demands for some sum of money, in return for which the writer agrees not to sue and will "consider the matter closed". These are offers to enter into a contract to settle the matter, not notice of some preexisting obligation to pay. Question: What does the "reservation of rights" language mean? What are they "waiving" at me? Answer: Many C&Ds will say something like, "This letter shall not be deemed to be a waiver of any rights or remedies, which are expressly reserved." This is just legalese for saying, "Even if you do what we ask in this letter, we can still sue you later." The language is standard; do not be alarmed. Litigation is extremely unpleasant, and unless your opponent is irrational (always a distinct possibility, of course), it will not bring litigation after it has obtained what it wants. |
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