Part 6. Theft of Sound Recordings

As used in this part 6, unless the context otherwise requires:
(1) “Aggregate wholesale value” means the average wholesale value of lawfully manufactured and authorized sound or audio-visual recordings corresponding to the number of nonconforming recorded articles involved in the offense. Proof of the specific wholesale value of each nonconforming device shall not be required.
(1.3) “Article” means a tangible medium on which sounds, images, or both are recorded or otherwise stored, including an original phonograph record, disc, tape, audio or video cassette, wire, film, memory card, flash drive, hard drive, data storage device, or other medium now existing or developed later on which sounds, images, or both are or can be recorded or otherwise stored, or a copy or reproduction that duplicates, in whole or in part, the original.
(1.5) “Copyright” means the ownership rights that accrue to an owner and relate solely to the common law copyright accruing to such owner. The term “copyright” does not include a federal copyright, which inures to the benefit of owners pursuant to Public Law 92-140, as amended by Public Law 93-573, which became effective February 15, 1972. For the purposes of this part 6, no common law copyright shall exist for a period longer than fifty-six years after an original copyright accrues to an owner.
(1.7) “Manufacturer” means the person who actually makes a recording or causes a recording to be made. “Manufacturer” does not include a person who manufactures a medium upon which sounds or images can be recorded or stored, or who manufactures the cartridge or casing itself, unless such person actually makes the recording or causes the recording to be made.
(2) “Owner” means the person who owns the copyright on the original fixation of sounds embodied in the master phonograph record, master disc, master tape, master film, or other device used for reproducing sounds on phonograph records, discs, tapes, films, or other articles upon which sound is recorded and from which the transferred recorded sounds are directly derived.
(3) “Person” means any individual, firm, partnership, corporation, or association.

(1) A person who knowingly and without the consent of the owner transfers any copyrighted sounds recorded on a phonograph record, video disc, wire, tape, film, or other article on which sounds are recorded with the intent to sell such article on which such sounds are so transferred or to cause the same to be sold for profit or to be used to promote the sale of any product commits unlawful transfer for sale.
(2) Unlawful transfer for sale is a class 6 felony.

(1) A person who knowingly, or who reasonably should have such knowledge, advertises, offers for sale or resale, sells or resells, distributes, or possesses for any of the purposes provided in this subsection (1) any article that has been transferred without consent of the owner as provided in section 18-4-602 commits unlawful trafficking in unlawfully transferred articles.
(2) Each act of unlawful trafficking in unlawfully transferred articles is a class 3 misdemeanor.

(1) A person who knowingly and for commercial advantage or private financial gain advertises, offers for sale or resale, sells or resells, transports, or possesses for any of the purposes provided in this subsection (1) any article on which sounds are recorded, the cover, box, jacket, or label of which does not clearly and conspicuously disclose the actual name and address of the manufacturer, commits dealing in unlawfully packaged recorded articles.
(2) Dealing in unlawfully packaged recorded articles is a class 1 misdemeanor. If the offense involves more than one hundred unlawfully packaged recorded articles or the offense is a second or subsequent offense, the court shall assess a fine of at least one thousand dollars.

(1) A person who, without the consent of the owner of the right to record a live performance, records or causes to be recorded the live performance on a phonograph record, compact disc, video disc, wire, tape, film, or other article on which a live performance is recorded with the intent to sell the article on which the live performance is recorded or to cause the same to be sold for profit or to be used to promote the sale of any product commits unlawful recording of a live performance.
(2) In the absence of a written agreement or law to the contrary, the performer or performers of a live performance are presumed to own the rights to record the live performance.
(3) For purposes of this section, a person who is authorized to maintain custody and control of business records that reflect whether the owner of the live performance consented to having the live performance recorded is a competent witness in a proceeding regarding the issue of consent.
(4) Unlawful recording of a live performance is a class 1 misdemeanor.
(5) As used in this section, “live performance” means a recitation, rendering, or playing of a series of images, musical, spoken, or other sounds, or a combination of images and sounds, in an audible sequence.

(1) A person who knows or reasonably should know that an article has been recorded in violation of section 18-4-604.3 and advertises, offers for sale or resale, sells or resells, or distributes the article, or possesses the article for any of the said purposes, commits trafficking in an unlawfully recorded live performance.
(2) Each act of trafficking in an unlawfully recorded live performance is a class 1 misdemeanor.

(1) This part 6 shall not apply to:
(a) Any broadcaster who, in connection with or as part of a radio, television, or cable broadcast transmission or for the purpose of archival preservation, transfers any copyrighted sounds recorded on a sound recording;
(b) Any person who transfers copyrighted sounds in the home for personal use and without compensation for such transfer.
(2) This part 6 shall neither enlarge nor diminish the rights of the respective parties in a civil litigation concerning the subject matter of this part 6.

(1) A law enforcement officer shall, upon discovery, confiscate all unlawfully labeled, transferred, or recorded articles possessed for the purposes of selling or distributing in violation of this part 6 and all equipment and components used or intended to be used to knowingly and unlawfully transfer, manufacture, or record articles for the purposes of selling or distributing in violation of this part 6.
(2) Notwithstanding any other provision of law, recorded articles and equipment and components that are confiscated pursuant to subsection (1) of this section are contraband and shall be delivered to the district attorney in the county in which the confiscation was made. Upon conviction of the person, the district attorney may request a court order for destruction of the recorded articles and a court order for distribution of the equipment and components. Upon conviction of the person and motion of the district attorney, the court shall order the recorded articles to be destroyed or otherwise disposed of if the court finds that the person claiming title to the recorded articles possessed the recorded articles for the purposes of selling or distributing in violation of this part 6. The court shall order the equipment and components distributed to a charitable or educational organization if the court finds that the person claiming title to the equipment possessed the equipment to record nonconforming articles for the purposes of selling or distributing in violation of this part 6.

Notwithstanding any other provision of law, upon conviction of a violation of this part 6, the convicted person shall be ordered to make restitution to the owner or lawful producer of the master sound or audio-visual recording, or to the trade association representing the owner or lawful producer who suffered injury resulting from the crime. The order of restitution shall be based on the aggregate wholesale value of lawfully manufactured and authorized recordings corresponding to the number of nonconforming recorded articles involved in the offense unless a greater value can be proven. The order of restitution shall also include investigative costs relating to the offense.