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Unauthorized Recording

In response to the growing black market for “bootleg” movies and music, the New York state legislature passed a variety of statutes designed to combat the manufacture and sale of unauthorized sound and video recordings. The anti-trademark counterfeiting laws in Chapter 165 prevent people from knowingly selling unauthorized copies of music CDs or movies/videos that bear the trademarks of the actual manufacturers. These counterfeit items may look very much like the “real thing” from the cover or case, but have not, in fact, been manufactured by a company licensed to do so. However, simply packaging the unauthorized recordings in blank cases or covers does not exempt one from criminal liability, as Chapter 275 covers the manufacture and sale of sound recordings and videos that do not purport to be the “real thing” on the outside, but are, in fact, mere copies of the originals.

First, people that hope to profit by recording concerts or theater shows without permission are at risk for an arrest. Indeed, Penal Law 275.15 makes it a Class A misdemeanor to knowingly (and without consent of the artist or performer) record a performance with the intent to sell or rent the recording (or with the intent to cause it to be sold or rented). Repeat offenders or those that make over one thousand illegal music recordings or one hundred illegal video recordings are guilty of the Class E felony of Penal Law 275.20. Also, it is a violation of Penal Law 275.32 to operate a recording device (such as a video camera) in a motion picture theater.

Finally, the sale of “pirated” music or videos is illegal under Penal Law Sections 275.35 and 275.40 (Failure to Disclose the Origin of a Sound Recording in the Second and First Degrees, respectively). Specifically, it is illegal to sell or offer for sale (or possess with the intent to sell) sound recordings or videos without conspicuously displaying the names and addresses of the actual manufacturers of the product or the artists on the covers, boxes, labels, or jackets of the packaging. Of course, legitimate manufacturers always display this information about themselves and their artists on their products. Thus, there is no way for a seller of pirated music to avoid criminal liability: if an unauthorized person attempts to list the name and address of the actual manufacturer or artist on his pirated recording or video, then he is guilty of trademark counterfeiting, but if he lists no name or address whatsoever (or a false address), then he is guilty of Failure to Disclose the Origin.

One of Galluzzo & Arnone’s partners, Matthew Galluzzo, successfully tried a Failure to Disclose the Origin of a Sound Recording case to jury verdict when he was a prosecutor at the Manhattan District Attorney’s Office. Such prosecutions are rare, and this one garnered attention from the Recording Industry and the appellate courts. The appellate court affirmed the conviction, and in the process, Mr. Galluzzo became known as an expert on the unusual subject of the prosecution of unauthorized sound recordings. Thus, if you find yourself accused of such a crime, you should strongly consider hiring Galluzzo & Arnone to represent you.

Key Penal Law Provisions:

  • Manufacture or sale of an unauthorized recording of a performance in the second degree, PL 275.15, a class A misdemeanor
  • Manufacture or sale of an unauthorized recording of a performance in the first degree, PL 275.20, a class E felony
  • Unauthorized operation of a recording device in a motion picture theater, PL 275.32, a violation
  • Failure to disclose the origin of a sound recording in the second degree, PL 275.35, a class A misdemeanor
  • Failure to disclose the origin of a sound recording in the first degree, PL 275.40, a class E felony
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