Is it yours?

October 18, 2016
 by Paul McGowan

When I first started PS Audio some 40 years ago, times were tough. The company was definitely a labor of love, one we not only didn’t make any money at, but instead, invested every nickel we had (and didn’t have) just to keep the dream alive.

One of my regrets was selling my album collection. Over my many years as a DJ I had amassed a pretty amazing record collection. Thousands of first pressings, hard to find albums from all over the world. One by one to pay the bills, I sat at the swap meet each Sunday selling enough of them for one to two dollars apiece to buy groceries for the week. The good news is that money carried us through some tough times. The bad news is obvious.

These sales took place in the 1970s, a time when there was no Napster, no worries by labels of copying and owner’s rights to purchased music. That’s not so true today.

Selling your own copies of that same music comes with some risk if you were not the original owner. In my case, many of the albums I sold were promo copies and gifts from musicians. Technically, I broke the law selling them. The same would be true today if it was a CD, not originally purchased by me.

This whole copyright thing makes my head hurt and to be honest, I treat it as I do the warnings on bedding I purchase not to remove the safety label.

Of course copying and selling is wrong, and wrong on any number of grounds. But what you do with your media collection, regardless of how it was obtained, is your business.

That’s not legal advice. It’s just my opinion.

Subscribe to Paul's Posts

47 comments on “Is it yours?”

  1. Aren’t there strange business models today. A street musician earns his money by meeting pedestrians coming across and valuing his efforts. I doubt he pays any licence fees to the songwriters. The pop star musician makes a single effort in the studio and get his result polished by the sound engineers. He isn’t payed only by valuing the hours he invested for singing and preparing the performance but also by every CD sold without any further effort. He even is payed for his often most unqualified recommendations in commercial advertisements for whatever products. I doubt the inventor of fire making asked for licence fees.

  2. Now I know why you’re so gung ho on digital. You were forced to sell your vinyl soul back then.

    Copyrights on music are a vestige of the player piano roll days. With all the transferring of titles to third parties the whole “intellectual property” idea is totally bogus. What nearly totally destroyed Folk Music? What broke up every great major music group? Copyrights. Now when the transfer of music is an electronic impulse the need to charge people what the market will bear for the “service” is really ridiculous. If Carly Simon needs to pay her analyst, let her write another hit song.

    1. I feel completely the opposite.

      Most people would not actively steal a painting out of an artist’s studio, yet don’t think twice about stealing the work of a musician; that’s completely horrific to me.

      Thank you for summarily dismissing Carly Simon’s hard work as not worth being paid for; that’s patently absurd and is situational ethics at its best.

      1. Agreed. Though perhaps a better analogy would be walking into the gallery, taking a high-res photograph of the painting, and selling or giving away the image in many different forms to any and all takers. Including a painting-forgery mill.

        If anyone thinks most musicians are getting rich, you don’t know any musicians 🙂

        1. No one said most musicians are getting rich. That’s setting up a false argument. The musicians who are getting rich are getting very rich because the distribution of music is virtually cost free. The other folks who are getting rich off older music are mostly publishing companies that bought or stole the rights from the original authors. Paul McCartney gets to pay the heirs of Michael Jackson if he wants to perform Michelle or Yesterday. That’s fair?

          And what about the Public Domain? Ever heard of Folk Music? Music for people to enjoy and not necessarily profit from. When does one of Carly Simon’s songs become a Folk Song? In a hundred years? Small wonder we have no local indigenous culture, even the music in our mind is owned by a corporation.

          Talk about intellectual rights, Dave Marsh once wrote a book about Louie Louie but was forbidden from quoting the lyrics because the copyright owner (not the author) forbid it.

          And what about music mixes? If I create an original work of art using so-called other people’s music am I allowed to claim it as my intellectual work. Why not?

          Copyrights should exist for a fixed period of time, like five years, then the material should pass into the Public Domain. Commercialism doesn’t preserve music, it destroys it.

          1. Shouldn’t it the artist’s choice as to whether they want their music to become public domain or not? Or do you want to deprive them of that right too?

            Don’t pretend Dave Marsh wasn’t renumerated in some form for those lyrics. Whether in the form of payment for the record or even in releasing it, he got tangible value for writing those lyrics; don’t pity him for that.

            Music mixes? You shouldn’t be able to claim that as your own, no more than I should be able to claim copyright to a modified version of a Getty-owned photograph or by slightly modifying the Mona Lisa and printing posters of it.

            I disagree wholeheartedly on your notion of copyrights; it does preserve music as it preserves the artist’s intent and continues to reward them and their assigns for their craft.

  3. Paul, I think that’s a bit disingenuous.

    You sold copies of records given to you for promotional purposes for your own financial gain.

    How would you feel if reviewers sold equipment given them for review on Audiogon? (Yes, I know review gear is loaned, but technically many of those records were also stamped property of the record label.)

    1. Well, first off, it happens in our industry all the time, but I digress.

      The records I collected as promotional pieces by artists were about 4 years old, some as many as six or seven – long past their prime purpose to inspire DJs to play their music on the radio when it matters, selling more records.

      So, while I see your point, the answer for me is simple. No, I don’t feel disingenuous selling stuff people gave me – and there are a couple of reasons why. First, to the extent I was able, I provided them with what they had wanted in the first place, publicity. Second, once the task is done and they’ve gotten what they hoped for, not one would have begrudged me the right to sell that which they gave me for profit. In fact, the musicians I knew back then – and the record promoters – would have encouraged me to do so. They never asked me to keep them beyond the time needed to complete the task they had asked me to do – and would have scratched their collective heads had I asked them if they wanted it back, or minded me selling it.

      I remember one producer, Pete Belloti that told me (as best I can remember over these many years) “selling or giving away these promotional materials is the best thing you can do. Hanging on to them denies others their pleasures.”

      Why would I want to do that?

      1. But have you actually been “given” a product that is stamped (but one example):

        Ownership Reserved by
        MCA Records, Inc.

        Sale is Unlawful

        The product in that case is not the producer’s to decide the ultimate fate of; it would be as if Bascom King had decided to start looting the PS Audio warehouse of BHK amps and giving them away because their sales price “denies others their pleasures.”

          1. We can agree to disagree, but if an album is explicitly stamped as above, it’s no more given to you then a piece of equipment sent to a reviewer has been “given” to them.

  4. A very controversial topic this post.
    Some people overheated already here.
    Is it right if an artist is paid for every copy of the album (cd, lp) that is sold ?
    The artist after all, was only in the studio for a couple of days (hours ?) to record the songs.
    That in fact is the real labour for her/him. Nothing more.
    On the other hand, “intellectual property” is not totally bogus. Not even bogus. (ask the IT-world…)
    Without the artist’s ideas the songs would have never existed.
    So, maybe not totally unfair the artist get’s paid a percentage for every sold copy (a fruit of his labour).
    And then the real topic of this post.
    IMHO you have every right to sell everything you possess. Whether you bought it with your own money or was given (for whatever reason) to you. You are just selling the product, not the “intellectual property”.
    But I know, the law is a bitch sometimes

    1. Saying an artist SHOULD NOT get any money from sales of legitimate reproductions of their work makes no sense.

      It’s a bit like saying that if you thought up a funny T-shirt, you should only be paid at an hourly wage rate for the design effort, and should not have the right to sell/make money on the shirts themselves, at whatever the market will bear.

      1. If you read my comment, you see that I said there’s something to be said for both opinions.
        But your comparison will not hold water.
        If the artist sells his cd’s (or T-shirts) himself, then he makes money for his labour (selling).
        If he “only” sang (made the design) and has taken no part in the production and sale, then for me it is not obvious he makes money on these sales.
        I say “not obvious”, not “completely unjust”.
        And for me that’s all there is to it.

        1. Sorry – I had not intended to post that as a “response” to your post. Keep forgetting about the “Submit Comment” button at the bottom.

          So I guess the “argument” boils down to – as an artist – are you doing ALL the work, or are you being funded by a company to waltz into the studio and lay down some tracks, and then they are doing all of the work to get that out to buyers? And they keep your publishing rights (if their lawyers are better than yours)?

          Nowadays, most musicians are doing the whole process themselves, or subcontracting people to help with it. For all but the top end, the days of the Old Model of the Record Company doing all the Work, and Spending all the Upfront Cash, etc., are over.

          And if one is so fortunate/successful/popular/talented to be in that top group, it is because A SERIOUS NUMBER of people like what YOU DO – not the record company, et al. And as such, they should get “a piece of the action” of the numbers they sell.

          Here’s another lame analogy. It’s like when I played in bar bands. If you didn’t bring people in the door, hanging out to hear you and buying drinks, you didn’t get asked back to that particular venue. Some places, you got a percentage of the bar tab. Sometimes you pay to play.

          There certainly are an infinite number of slices to this spectrum.

          1. Plus, in many cases today, artists who have done reasonably well have purchased their tapes and/or rights to their songs back from the record companies or agencies to which they were originally assigned.

            Artists as diverse as Stephen Stills, Neil Young and Amy Grant have purchased the rights to their recordings from their original assigns so it can be done, and it is they who deserve the rewards to their hard work and efforts. They also for the most part record and release their own work now, relying upon record companies only for production and distribution, simply because that end is often not worth the hassle of doing themselves. (Hey, it costs money even to self-distribute; Amazon and iTunes don’t post content for free.)

    1. For the most part, if you purchased a legitimate recording that was once owned by someone else you’re in the clear.

      However, the original purchaser also had the duty to destroy copies they had of it at the time; the current common practice of buying CDs, ripping them and selling the physical copies is, IMHO, basic theft.

      1. Unless otherwise encumbered.

        Software license agreements make it clear that you cannot duplicate the software involved or, in many cases, provide it to someone else even if you no longer use it.

        I own several works of art by prominent artists in which the sales agreements specifically state the artist, not I the owner, retains copyright and duplication rights to the piece.

        “Ownership” is a tricky concept; for example if you paid money for a stolen item, you do not get to keep it because it was not the seller’s property to sell in the first place.

  5. For me, the issue is the ridiculous length of copyrights. IIRC, something like 70 years after the death of the artist and then it can be renewed by the inheritors. That makes no sense at all.

    It should be like patents. 20 years and done.

  6. By “original purchaser” definition, most of my collection is in doubt. A substantial minority of my LPs were bought used; all of my 78s were retrieved from a dumpster. Well over half my CDs came from used bins and eBay – but over 500 were either purchases or gifts directly from the respective artist at concerts.

    The most interesting case is my private recordings. As the recording engineer/producer, I have an IP stake in them, but I can’t make copies or sell them without permission of the artist. Further, any recordings of pieces read or learned from scores require payment or permission from the composer, publisher and the mechanical rights organization.

    The latter is the root is an unresolvable legal quandary. We have been approached by BMI and ASCAP for licensing fees. Their hack assembly line lawyers have zero imagination and are following scripts. It is inconceivable to them that a live performance venue listed often in the NYTimes and New Yorker NEVER offers any licensed music, and runs at a -70% profit margin with staff essentially volunteering for a cut of the door (which never exceeds minimum wage and often is zero paid attendance!).

    We don’t fit their model because every other music venue either has ticket sales, wealthy patrons supporting a non-profit org, or makes money on retail food & drink sales. This is essentially a series of house concerts that presents music important enough to be newsworthy, but not appealing to people seeking entertainment. The only attendees at our “Art Music” events are friends and family of the participants. Consequently, this music is not played at the dozens of Classical halls in New York. We present premieres of pieces written over 20 years ago!

    Our mission is experimental music. We average at least a set a week of free improvisation, where there is no composition for royalties. More often, we have composer/performers, composer curated shows or composer portraits where the composition is compensated directly to the author in attendance.

    We don’t program music that is on charts, played on radio or sells more than 500 copies if it gets released. We have essentially no standard repertoire – I think we have had three sets of Chopin, one of Beethoven, two of Brahms and three of Bach out of 2,000 concerts. (Publishers renew copyrights through new arrangements of expired sheet music by changing a few notations).

    Instead, we present over 200 premieres a year by living composers in the Classical tradition. This obscure corner of the music world is 1% of the 1%, like the Free Jazz. None of the musicians and composers are making their transportation expenses, food and rent from concert and recording revenues. They are either teaching other people a non-remunerative profession, have a day job or are supported by grants, spouse or inheritance. The lawyers and staff at publishing organizations would cost them more than they could make, so they don’t affiliate.

    The SRO’s are threatening to shut us down but we are holding fast, saying we would rather shut down or exclude all BMI/ASCAP works than subsidize the lawyers for rich composers by a minimum annual fee.

    1. If that’s your model, why not simply assure them that no ASCAP/BMI/SESAC work will ever be performed in your venue?

      Many venues do just that; you will of course be subject to occasional surreptitious visits by examiners, but if you indeed do not perform those works, there will never be penalties to be paid.

  7. “Warning language specifying current penalties

    ◾FBI Anti-Piracy Warning: The unauthorized reproduction or distribution of a copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to five years in federal prison and a fine of $250,000.”

    I don’t see anything where it says you can’t resell original recordings, books, or other copyrighted material. If it did, every used record store, book store, garage sale would be breaking the law.

  8. Laws are made to protect individual rights but are only useful when applied diligently. Unfortunately there is a fashion to make laws for every thing imaginable rendering the average person totally devoid of common sense and thereby becoming a brainless robot. As to your collection of records well it is very very sad to hear about it. All my serious listening is done with vinyl and I can understand your grief, yet see how they contributed to what is now a shinning example of very very high quality at a reasonable price products. How nice it would have been if you could have done it without parting with the LPs. As for selling them, they were yours and you should have every right to do what you wish them it’s no one else’s business. Too many people poking their noses where they don’t belong and lacking the intelligence to do it right. Sad state of affairs. Regards.

  9. When I was at school we used to tape stuff off the radio. We even used to tape from LPs. So I started my life of crime at a young age. The most copied item was “Derek and Clive Live”. Hardly surprising at a boys’ school. Still one of the funniest things ever recorded. No … the funniest.
    If you haven’t got Peter Cook’s collection “Tragically I was an Only Twin”, essential reading.

  10. I come to this with a “bias” but one that is born out of many years working in the creation of intellectual property – movies, TV and music – a pursuit that has employed ten of thousands of people and enabled the creative arts to flourish.

    It doesn’t matter how much time or money has gone into the creation of a song, film, computer program, circuit board for a DAC, if what is created has intrinsic value (ie people want it), then the creator of that (intellectual) property is entitled to be remunerated for it.

    Paul, I love your equipment, in fact have an audiophile system that blows my mind that is all PS Audio, but you are entitled to the protection of the law to prevent someone from reverse engineering it all and manufacturing in the Far East and selling directly in competition with you.

    Your investment in the PS Audio brand, intellectual property and knowhow goes way beyond the years and dollars you have put into creating one of the world’s eminent audiophile equipment manufacturers

    I can no sooner walk into your warehouse and take what I want than it is OK to engage in piracy of any intellectual property – be it music, books, film, TV or any other content created by others just because “I want it”

    Selfishly way beyond my own business interests, we all need to pay for this so that people can afford to actually produce the creative content that makes life itself worthwhile.

    PS – this is not about reselling properly licensed LP’s, CD’s or recordings but rather ensuring the original purchase is legitimate

    1. There is a difference between music rights and patents.

      If a musician contracts to produce a commercial musical recording, there are income streams that arise. Physical media are resold. My local store, Alan’s Records, has been in business about 25 years and I don’t think he’s been raided. Alan is as nice a man as you could hope to meet. The product is unique, but there is no practical way of limiting its transfer after the initial sale.

      Audio companies develop technology and patent it. They can make money out of it for decades. Dynaudio and Focal develop speaker drivers and sell them under license, as well as selling in their own products. Harbeth developed their current driver in 1986 and have never licensed it, but have been paying BBC license fees for their speaker designs for decades.

      On the other hand, there is nothing terribly clever about converting a digital signal to analogue. The required components can be purchased for pennies. Some people think they can do it better than others and charge accordingly. I am aware of a $10,000 DAC that measures worse than a $100 one.

      Most audio equipment, perhaps other than turntables, can be built by amateur hobbyists at home, as was often the case. I do wonder how many audio companies have patents of any significant value relative to the acquisition goodwill value of the company itself. My guess is that most of the goodwill value is in brand names, as audio consumers do demonstrate a remarkable amount of brand loyalty.

      1. Steven – “On the other hand, there is nothing terribly clever about converting a digital signal to analogue. The required components can be purchased for pennies. ”

        You should talk to Paul about that. If he hasn’t already composed a PPost about it 🙂

        1. That comment was of course intentionally provocative, but when a $100 DAC measures better than a $10,000 DAC you have to wonder. This arose when a company was loaned a $10,000 DAC for a show, it measured worse than a supermarket DAC.
          There can’t be many more experienced D/A A/D designers than dCS, having designed for industrial applications long before audio, and I was mightily impressed with their $100,000 Vivaldi system, equally so with their $20,000 Puccini single box. I am equally delighted with my $1,000 DAC. There are some astonishingly good products at regular consumer prices, like the TEAC UD-503 (under $1,000) and Chord Hugo ($3,500, much cheaper in the UK) that have impressed in very high end systems.
          I can sort of understand why certain types of products improve in quality with increase in cost, but I’ve never fathomed that with DACs.

            1. Which is exactly what I did, side by side with my PWD Mk2. (I had both for a few days.) I actually found the new unit much better at resolving HD music files. Otherwise, both DACs performed admirably. I could not mentally contemplate the Directstream DSD DAC, at full retail it is 7 times more expensive (£800 vs £5,500). It is not that I cannot afford it. I tend to measure things in terms of 2 top price tickets to the opera, and the DIFFERENCE amounts to 12 pairs of tickets. In terms of regular shows (concerts, recitals, dance), the difference is about 150 tickets. I suppose it is a matter of priorities.

  11. I have my own code of ethics on this. I will make a copy of a CD or LP, if the artist is dead, or the music is not available for purchase. Or, if I know the artist will no longer receive a royalty for music being sold.
    I will not make copies of bands like the Sugar Stems or Testa Rosa. They are local bands selling their music on Bandcamp, or through their websites. The money they receive allows them to make more music. You can come over and listen, or find them on uTube. To decide if you want to purchase.
    When I was in my teens we made cassettes, we often passed around a purchased album, mostly because we didn’t know better. I recently received some DSD files, ripped from a hacked Oppo. Most of the music I already owned in other formats. I think bands like my beloved Grateful Dead, allowed taping and sharing of their live music, because they understood, that they never played the a song the same way twice, later on as Further the shows could be purchased right at the show, on CD. The band also understood that they made their money playing live, that commercially released music was just a taste, and fortunately they did not depend on commercial sales to survive. And in today’s world very few artists/bands do make their living on their recorded music. It is all about touring, playing live.

    What I object to is anyone profiting on music, by selling copies. I also object and have filed complaints when I see someone selling a hard drive loaded with music. That to me is stealing, what Paul did, I do, and many others do, either selling their collection, or sharing a copy of otherwise unavailable music, does not bother me. I do think it is a gray area when people buy music, make a perfect copy, then sell it. I think this is the modus operandi of many sellers of used CDs on Amazon.
    I had discussed an App, with a friend, one where where we could pay an artist directly for any of the music we acquired. Now how we would maintain accounts, then verify that it was the artist giving us their payment link. I never figured that one out. The App would take a small percentage, and would donate unclaimed money to a few of the organizations that help support down on their luck artists. I think there is one for blues musicians, for example. I would gladly put in a fair amount for any music I got, if I knew the band or artist would receive it directly. If someone thinks they could make this a reality, I want my cut. Only because I am in the worst financial shape of my life, mostly due to health issues.

    I think it boils down to motive, and whether or not it is done only for profit. And I think bands and artists might feel the same way.

    Gillian Welch wrote a song that sums it up.

    1. I understand the pain of music not being available; I’ve never understood it especially in today’s age though it still costs money to even make music available for sale.

      Point is, paying an artist or their assigns for music is the whole reason ASCAP/BMI/SESAC exist.

      I don’t feel Jim Croce’s widow should be denied royalties just because he died.

  12. If Paul isn’t allowed to sell his used records because they were promo copies, what is the proper recourse? Send them back to the record company? Probably out of business. Give them away? Probably okay since he didn’t profit. Throw them away? Right. Classic collectable first pressing LPs. Please throw them away so we can sell even more.

    No one seems to notice the dangerous precedent here, with corporations continuing to claim ownership of items they sold or gave away. When do we finally own the tune? Never?

    1. They should be returned to the company or its assigns.

      Record company out of business? Someone bought their library.

      No, you NEVER own the tune, unless it was specifically released to the public domain. The public has no more right to a song than they do to copies of “Casablanca.”

  13. One more point on copyrights. Someone in this conversation claimed that acquiring a song without paying the copyright owner fully is the same as going into a museum and taking an artist’s painting off the wall. Right. Maybe if we stole the master tapes (as some have done), but the CD or LP facsimile of a recording is not the artist’s original work of art. Not even close. It is a consumer product that belongs to the consumer once it’s been paid for. If the artist involved is not being compensated for copies being made, put a tax on CD-R’s and pay the artists proportionally out of that. The fact that sharing music is illegal is obscene.

    1. They tried that when companies were selling CD burner. I think some had cassette decks built in or dual trays. They would only burn when using special audio specific blanks.

      The Premium in price went to ascap or labels, I don’t remember, but once decent CD burners and software was available the product line was dead.

      And I seem to remember someone figured out if you inserted an audio approved blank, let the machine read it, then pry the door open, you could replace it with a much cheaper CD-R.
      And my guess is the royalties were never much, and certainly never got to the artists.

    2. RagTS – no, I built off BillK’s post, – way, way back at 5:30-ish am Denver time this morning, where he said that “most people would not actively steal a painting out of an artist’s studio”, and I extended the analogy to digitally photographing and distributing the painting. I didn’t say anything about paying the copyright owner fully.

      Perhaps a more accurate analogy would have been – if you were in a gallery where there were fine art original photographic prints, and you bought one, took it home and made digital copies – (which, as with music files nowadays, is near as dammit to the same thing) – and then gave them away or sold them.

      As Jeffstarr noted, DSDs can be ripped. Most people would not be able to tell the difference (or care) between the master tape and a properly done SACD file. A big part of the whole approach that Sony took to SACD originally (which was arguably it’s downfall as a consumer format, along with price, and needing a special player) was that it was so close to the master quality, that if there was not robust copy protection in some way, unscrupulous folks would do an end run around them and both they (with their major investment), and the artists would end up with the short end of the stick.

      So the argument that it’s not even close to the master doesn’t hold up. You paid for your copy. Good. That doesn’t mean you can replicate it and give it away, or sell copies of it.

      It boggles my mind that the “music should be free” thing has become so entrenched as to seem like a right.

    3. So then it’s OK for me to go down to my local art gallery, or say the Art Institute of Chicago and take photographs of the art works and start giving them away to anyone that wants one, right? I mean, it’s my effort and my photo equipment, and if they didn’t like it they should tax SD cards.

      Not quite.

Leave a Reply

Stop by for a tour:
Mon-Fri, 8:30am-5pm MST

4865 Sterling Dr.
Boulder, CO 80301

Join the hi-fi family

Stop by for a tour:
4865 Sterling Dr.
Boulder, CO 80301

Join the hi-fi family

linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram