Selling digital copies of records

The High Evolutionary's picture

Recently a large independent record store, with three California locations, has taken to selling direct copies of records in an online section of their website.  Many complex copyright issues are raised by such activity.

"As used vinyl comes back through the doors of the store, employees have been culling albums to record, master and then sell digitally on the new Vinyl Vaults section of their website. You won't find the last Radiohead album there or other big time releases from big time artists. Its focus is the left of center, the self released, one-off singles recorded in someone's basement -- an absolute treasure trove of old blues ripped from shellac 78s and unreleased psychedelic workouts."

The record chain has decided to go forward with releasing even the albums that they cannot determine the actual copyright owner of, in effect, distributing music without the actual right to do so. Though they seem to have determined some clever loopholes to possibly justify their ability to do so.

[M]ost of the material available in the Vinyl Vaults is in fact licensed, but... some of the works are not. This is where things get sticky. 'If we deem that it's not available digitally, then we try to make contact with the person who owns it. If the person who owns it is interested, we send them a copy of our Vinyl Vaults agreement, do a deal, and put their project up. Make a digital master of the record and clean it up. If we can't find the rights' holder, we have a decision to make -- if it's something that we think we can put up and help expose to the world. If it's something that belongs to somebody, it says right there on our page that we will take it down or make a deal.'"

What is particularly interesting about this idea is that it opens a vault of hard to find samples to the public. Whether that is a good or bad thing is up to the individual to decide, but it goes in the face of much of hip-hop's production and DJ tradition. In the past, many producers considered part of the game to be the thrill of the hunt and the ability to discover hard to find samples themselves. Is this a tradition worth keeping in high regard in the digital age?

Works for which the proper owner cannot be discovered are called orphaned works.

Temple Law Professor David Post teaches copyright law, and recognizes the issues at hand. 'This has become a big enough problem in copyright law that this now has its own name. They're called Orphan Works,' he says. 'Sound recordings before 1972 were protected under state law. People have died, left things in their will, their heirs have died. There's no central repository of copyright ownership information that's comprehensive.' But just because you can't find a copyright holder for an orphaned, self-released folk record that never sold a single copy, doesn't lessen the possible liability."

Such works, in the past, were much safer for those looking for samples that were unlikely to require clearance, simply because it was unlikely that their use would be discovered. The existence of such sample vaults could make the discovery of the sample's original source much easier to discover and eventually result in the proper rights holder looking for re-payment. Also, in some ways it takes the joy out of finding a rare sample that you recognize.  But the choice to use digital samples is much like the choice to use break records or sample packs, it is ultimately up to the individual but some consider there to be an unwritten code of ethics in the hip-hop production game and those individuals may consider such activities as cause for disgrace.  So think before you sample and decide for yourself which route you are comfortable with.

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