Irdial Sues WEA

June 28, 2004 12:16 AM

Irdial Records sues WEA over copyright infringement. A recent Wilco album, Yankee Hotel Foxtrot sampled part of the "The Conet Project: Recordings of Shortwave Numbers Stations" 4CD set without the permission of the label. The Cd is simply recordings of mysterious shortwave radio emissions. WEA have settled out of court. (misrepresented on Boing Boing)
posted by mary8nne (29 comments total)

Past FPP on the Conet Project
posted by gluechunk at 3:24 AM on June 28, 2004

Here's the permalink for the boingboing post in question: a misrepresentation maybe (I don't know the law well at all), but it does also strike me as a bit rich to claim copyright ownership on something one has recorded from a radio transmission. It seems a shame that Irdial couldn't have sued for WEA infringing their Open Content Licence by failing to provide proper attribution, for example.
posted by misteraitch at 4:11 AM on June 28, 2004

Someone at irdial took the trouble to respond to my post above:

We dont have a metafilter account, so here is a quick response to your post.

Under Mechanical Copyright rules: when you make a tape of something, the copyright in that tape belongs to you. No one can take that recording and make a copy of it without your permission. The same goes for CDs that you manufacture.

Copyright comes in more than one part; for our purposes, we can discuss the copyright in the composition and the copyright in the sound carrier. In our case, we can claim that the copyright in the tape and the CDs belongs to us, since we made them. No one can copy from them for any reason, unless we give our permission (which we do for individuals). What is on the recording does not have to be a composition that belongs to us, as it is covered by a different copyright.

This is why, if you sing "love me tender" in the shower and you make a tape of it, even though the song belongs to Elvis, the copyright in the tape recording belogs to you.

As for failing to provide proper attribution, our music is released under a modified FMP licence, whilst the Open Content licence is for articles and other stuff on the site marked as OC.

posted by misteraitch at 6:04 AM on June 28, 2004

even though the song belongs to Elvis, the copyright in the tape recording belogs to you.

Since at least one of you clowns is actually reading this, let me just point out that if I record you in the shower singing "Deutschland Uber Alles," the copyright still belongs to you, not me.
posted by yerfatma at 7:00 AM on June 28, 2004

And again, since at least one of you clowns is actually reading this (Thanks, yerfatma!), I had planned on buying The Conet Project 4-CD set, having been introduced to it by YHF, but now I don't think I will.

Nyah.
posted by *burp* at 8:18 AM on June 28, 2004

Also: I'm not wearing any pants.
posted by yerfatma at 8:33 AM on June 28, 2004

They are correct. That's why recordings of classical pieces long out of copyright can themselves be copyrighted.
posted by kindall at 8:35 AM on June 28, 2004

Film at eleven.
posted by *burp* at 9:53 AM on June 28, 2004

That's why recordings of classical pieces long out of copyright can themselves be copyrighted.

Exactly. If Wilco had hired a voice actress to repeat the words "Yankee Hotel Foxtrot", and then processed them to sound like they were coming over a shortwave transmission, the Conet people wouldn't be able to do much about that, since they do not own copyright on the phrase. Since, however, the band apparently used the actual recordings made by this project, and the project owns the copyright on them, and did *not* give permission for their use, I'd say it's case closed.

The monopoly record labels use clauses in their contracts to immunize themselves against legal attacks if copyright infringement takes place.

Does anyone who knows more about contract law know how this can be enforceable? As the article states, it seems kind of odd that a third party who is not a signatory on a contract can still somehow be bound by it.

And, to balance out those who seem to think that those who produced the Conet Project CD should be punished for being uppity enough to go after Wilco, I'm gonna look for this disc and buy it. Maybe two or three copies.
posted by deadcowdan at 10:03 AM on June 28, 2004

Good for you, deadcowdan. Good for you.
posted by *burp* at 10:11 AM on June 28, 2004

A makes a recording. B uses the recording for commercial purposes without A's permission. A sues B. A and B settle out of court. I don't see the problem.
posted by Triplanetary at 10:22 AM on June 28, 2004

That's why recordings of classical pieces long out of copyright can themselves be copyrighted.

But the copyright belongs to the orchestra that performed the piece, not to the person who made the recording (though in practice, these will typically be the same organization). If I make a bootleg recording of a rock show, I do not own copyright on that recording: the right to copy belongs to the performer.

In this case, the Conet Project merely played the role of recorder. If the copyright belongs to anyone, it belongs to the organization responsible for producing the original transmission. Doesn't it?
posted by mr_roboto at 10:30 AM on June 28, 2004

Sorry, I didn't read far enough in the linked article. The interesting part here, in my opinion, is this:

The monopoly record labels use clauses in their contracts to immunize themselves against legal attacks if copyright infringement takes place. This means that if WEA International releases a CD with samples on it, the infringed party can seek damages from only the artist, and not WEA International. [...] This means that if the artist is bound by a contract that pays him 1% of the profits from a release, then you can only receive a proportion of that amount, while the label keeps the other 99% in its entirety. This is an astonishing situation, where a third party that is not a signatory to a contract, is bound by the terms of that contract.

It's an interesting situation, but maybe not astonishing. In the publishing industry the same rules apply. Authors promise their publishers that they haven't copied someone else's book. If there is legal trouble down the road, the author is the responsible party, not the publisher who accepted the book in good faith. I think this is the only reasonable way to go, as it's very hard for a publisher to make absolutely sure that they don't accept material that has been printed somewhere before.
posted by Triplanetary at 10:40 AM on June 28, 2004

In this case, the Conet Project merely played the role of recorder. If the copyright belongs to anyone, it belongs to the organization responsible for producing the original transmission. Doesn't it?

I cannot see how it wouldn't. Their claim is:

These distortions, nuances and noises make our recording unique, and completely remove it from being a literal duplication of the original source.

Under those assumptions, a concert taper taping freely (not off the console) would mean that its not a duplication of the original source of the concert. The guy next to him going "whooo" makes his recording unique from a guy five feet away.

If that's OK, then shouldn't it be OK to take the Conet album into the loo with you re-record it, claiming that the unique room acoustics are now value-add and therefore entitle one to copyright?
posted by Ogre Lawless at 11:13 AM on June 28, 2004

Foxtrot Roger India Victor Oscar Lima Oscar Uniform Sierra.

(c) m@, 2004. All Rights Reserved. May not be reproduced by any means mechanical or otherwise. Dealer retains all incentives. Must take delivery from dealer stock. Not all colors, sizes or styles available. Offer valid in 49 states, sorry Tennessee.
posted by m@ at 11:18 AM on June 28, 2004

Wow, people still sue over samples. Amazing.
posted by Jairus at 11:31 AM on June 28, 2004

If the copyright belongs to anyone, it belongs to the organization responsible for producing the original transmission. Doesn't it?

I'd say that until the original org. steps forward and claims copyright on the transmissions, they belong to the recorder.

And yes, people still sue over samples. You must be easily amazed.
posted by deadcowdan at 11:37 AM on June 28, 2004

I'd say that until the original org. steps forward and claims copyright on the transmissions, they belong to the recorder.

You could say that as often as you like. Unfortunately, copyright law does not say that, never has, and never will. Sorry. Abandonment of a work does not result in the reassignment of a copyright: reassignment would require an affirmative action on the part of the original copyright holder. Similarly, an abandoned work does not automatically enter the public domain.

Their claim is...

This pisses me off. In responding to this thread (misteraitch's comment, above), they claim that they own the copyright because mechanical copyright law gives the taper copyright on a tape. This is patently absurd, of course: a complete misrepresentation of the law. Now, however, I see that they realized this initially, and that their actual (slightly less absurd) claim for copyright has to do with "distortions, nuances, and noises" introduced when they made the tape. All right; so why not just come out and say that to misteraitch? Why the completely disingenuous argument about mechanical copyright? Do they take us to be that ignorant?
posted by mr_roboto at 11:49 AM on June 28, 2004

I'd say that until the original org. steps forward and claims copyright on the transmissions, they belong to the recorder.

Does copyright really work like a sifter and we just keep shaking until someone, anyone shows up to claim ownership? Your statement implies there are some folks who taped the Dead religiously that are sitting on a gold mine (assuming the Dead never caught wind of the scheme).
posted by yerfatma at 12:12 PM on June 28, 2004

deadcowdan: I'm a member of MACOS, and all the musicians I work with in my line of promoting all sample heavily, and are sampled from heavily. None of us would ever think about suing someone over a sample. I don't do much work with mainstream artists, and it's pretty amazing to find out that people still throw lawsuits at each other over a few seconds of sound.
posted by Jairus at 12:21 PM on June 28, 2004

Unfortunately, copyright law does not say that

I understand that as well as you. However, in practical terms, that's the way it works. A copyright is worthless if the copyright holder never asserts ownership of it, and even assuming in this case that the original broadcasters own the copyright to this material and not Irdial, they (the broadcasters) aren't going to step forward to do so.

But that argument, however much you may get charged up over it, is not what I find interesting here. Irdial may very well not own the copyright on these recordings (although that is something for those who say they don't to prove), but if they do, TWAOL is trying to have their copyright law both ways. Their stance is that it's the artists' fault if a CD they release has infringing material on it, and despite the fact they're making a lot more money on the CD than the artist(s), they are blameless and can't be sued. And yet, the RIAA (an org. that TWAOL is arguably the single biggest member of) expects Kazaa and other P2P software makers to police the actions of their clients and customers in a way that the record companies apparently don't think is required of themselves.
posted by deadcowdan at 12:28 PM on June 28, 2004

Further to the e-mail I quoted above, I asked Irdial's representative the following:

I am sure this can only be a hypothetical question, but what would happen, do you know, if one of the broadcasters of the transmissions on the CONET project were to assert their ownership of copyright on such master recordings as they had of the original broadcasts? Would they be in a position to prevent you from redistributing your recordings?

To which came the reply:

If that were to happen, we would take them to court to prove that they were behind the transmission in question. They would have to reveal and demonstrate methods of operation and equipment before a judge in open court. We would then be responsible for unmasking the face of an agency behind Numbers Stations, including all the juicy details - something that has never been done.

I was asked this very question live on the air in a radio interview, where I said that I would pay a royalty to any of the agencies responsible for a Numbers Broadcast. They will /never/ do this of course.

So Irdial are being disingenuous, but at the same time, are well within their rights & are not acting improperly. It's all very confusing. Anyway, I'm buying a copy of the CONET project, as I'm genuinely interested in the recordings, have downloaded many of them via limewire, etc., in the past & would like also to have them in a box on my shelf.
posted by misteraitch at 12:57 PM on June 28, 2004

Headline news, SPIN Magazine, 2035

WILCO'S 'YANKEE HOTEL FOXTROT' SUED FOR 'EXCESSIVELY TROUBLED BACKGROUND'
posted by kevspace at 2:03 PM on June 28, 2004

How can Irdial, which has admitted it is in violation of copyright by making the original recordings, sue somebody for redistributing its own infringing recording? Give me a fuckin' break.
posted by IshmaelGraves at 4:08 PM on June 28, 2004

Irdial is a teeny tiny indie label, that puts out some mad shit, all of which you can download for free, including the whole of the CONET project.

Wilco, on the other hand, were too lazy to clear a sample. Something that should be an automatic reflex by now.
posted by inpHilltr8r at 7:05 PM on June 28, 2004

Correction: Almost all, the hyperreal mirror is missing some releases.
posted by inpHilltr8r at 7:10 PM on June 28, 2004

Last thing: Wow, I knew they went digital, but I didn't know they'd destroyed all but 100 copies of each remaining release.
posted by inpHilltr8r at 7:47 PM on June 28, 2004

Just think how different the indie world would look now if Wilco had sampled "Pump Up the LEDs to Red, Take Some Drugs and Shake Your Head" instead...
posted by arto at 5:54 AM on June 29, 2004

how many people arguing about being all knowing about this issue have bought/heard this release?

The gorgeous, well written booklet that comes with incredibly creepy, museum-quality compilation of recordings known as the Conet Project explains quite clearly that these recordings are their property and that they would appreciate anyone using them in commercial music paying a modest fee for doing so. For the benefit of the project. You see recording numbers stations is/was incredibly difficult, time cosuming and needed very expensive equipment to be done. It was done out of love.

Then a big name band uses the samples, doesn't clear them and even goes so far as to name their album from one of the samples. On top of that I'm sure this suit is the result of some people on the Wilco side being unwilling to negotiate.

How angry can you be w/ Irdial? They give the stuff away for FREE with the only limitation being that if you are going to use thier recordings to please pay a standard licensing fee. Seems more than reasonable to me and the arguments against this arrangement seem to work against all that is good in the recent anti-copyright movement.

Besides, you could make these counter arguments about wildlife recordings too and I think you'd be wrong to do so. I *want* a profitable market for these kinds of recordings so that people make more of them! Making it ok to sample/resell 'passive' recordings is a bad thing.
posted by n9 at 12:19 PM on June 29, 2004