A challenging question about tape, money, and copyright law. Dive in!

February 8, 2014 6:53 PM

I have come into possession of a very rare item. How can I make a whole lot of money on it?

OK, to be totally honest, I haven't come into "possession" of it. I have a friend who has acquired (through entirely legal means, I should add) a very rare and probably unique recording. Without trying to be coy, I shouldn't provide explicit details. It's a recording of a very well-known musician, no longer living, which has never been published or, as far as we know, duplicated at all.

My friend and I are both dealers, so we're interested in making some money on this item. Would it make more sense to sell it outright to a collector, or to attempt to sell it to a recording company in exchange for a percentage of the profits that they would make in reproducing and selling it? [Disclaimer: I am an antiquarian book dealer, so if I say anything that exhibits total ignorance of the music business and/or how recording works, that's accurate.]

According to my friend, who has consulted with a lawyer, he owns the material recording but doesn't own the music that's on it. How exactly does all of this work? What are our options?

I realize that Y.A.N.M.Record.Company.Executive, and will take all advice as amateur. Unless you happen to actually be the above, or a copyright lawyer, in which case, fess up and help me out!

Thanks!

posted by crazylegs to Media & Arts (16 answers total)

While you own the physical recording, the IP of the music performance is most likely owned by the estate of the deceased musician. This means you can't legally duplicate and sell it without the estate's consent. Some of this depends on the age of the recording, though.
posted by slkinsey at 7:03 PM on February 8, 2014 [8 favorites]

Yes, this depends quite a bit on the particular musician's estate. There may also be further issues of copyright, publishing rights, etc. to consider if the music he's playing on this recording was written by someone else (that is, a recording of Brian Jones -- for example -- playing his own music is going to have different issues than a recording of Brian Jones playing Muddy Waters).
posted by scody at 7:10 PM on February 8, 2014 [1 favorite]

Thinking out loud, your best bet to make money off the tape might be to contact the estate, let them know that it exists and that you own the physical tape, and that you will only release it to them in return for a share of any proceeds from publication.

Keep in mind though that they might not want to publish it. It might not be up to their quality standards, they might have other unreleased recordings queued up for publication, etc.

Sale to a private collector might be another option, if it's something on the order of a high quality Jimi Hendrix recording. I believe you'd have to sell them the original.

In any case consulting with an attorney familiar with this sort of thing would be an essential step. A lot will turn on the quality of representation you get.
posted by alms at 7:12 PM on February 8, 2014 [1 favorite]

Think of it this way: you find a rare 40 year-old book; all the other copies have been lost. Do you have the right to sell the publishing rights to this material again? You do not. Do you have the right to sell the actual physical book? You do.

Now replace "book" with "recording" and you can see where your idea about selling it to a recording company falls short.

If you wish to sell it to the estate and do not ask for a cut of the proceeds, they may pay as much as a collector, but probably not. If you ask for a cut of the proceeds, prepare to have the most giant middle finger pointed in your direction that you have ever before experienced.
posted by incessant at 7:18 PM on February 8, 2014 [7 favorites]

If the tape is important enough to bring serious money, you should talk to an auction house such as Sotheby's. Otherwise you might think about eBay.

Either way, if the artist's estate wants the recording, they can bid on it.
posted by in278s at 7:53 PM on February 8, 2014 [1 favorite]

prepare to have the most giant middle finger pointed in your direction that you have ever before experienced.

I'm not sure that's the case. If you approach them with a reasonable attitude they might respond in kind. You are bringing them something valuable, and if you legitimately own it then there's some right in the provenance that you're bringing to the table.
posted by alms at 8:00 PM on February 8, 2014

You own the tape, but owning the tape does not grant you the right to republish it or profit off the republishing of it.

You can however attempt to negotiate a cut with the owner of the rights to the artist's work, if say this is the only copy or the best copy of the work.

The owner may be the estate, or it may be someone else. The artist could have signed away all sorts of rights to someone during their lifetime.
posted by zippy at 8:34 PM on February 8, 2014

previously
posted by contraption at 10:33 PM on February 8, 2014

prepare to have the most giant middle finger pointed in your direction that you have ever before experienced.

You don't have to be a total dumbass about this. People license music all the time. They are called reissues and compilations. You may have the means or interest to reproduce and distribute this recording, and the estate may not, but will give you permission to do so for a cut. That or you might find out that they already have the original recording and/or don't want to make a deal.

But it's not unheard of for them to sell you the rights for an upfront fee or a percentage. I just wouldn't go so far as to say you have leverage. I've been involved in such deals with international clients; the owner of a particular jazz album lives in France, you make a deal and agree to make and sell the record in the United States. Everyone wins.

Also with records? It goes without saying that you should be very careful of the cover, keep it in dry conditions, and not play it repeatedly. Regardless of what you do, the actual record will have value and you have the right to sell it. Records are also made in batches, so unless you have an acetate or a test copy, your claim that you possess the only copy is highly dubious. Placing value on an out-of-print record is a dark art. There are a couple of famous ebay sellers and well-established second-hand stores around the country that you could submit inquiries to. Are you going to get the best deal out of them? It's hard to say. People collect records for all sorts of reasons. The key is to find the right buyer with deep pockets.
posted by phaedon at 10:35 PM on February 8, 2014 [1 favorite]

The first thing you need to do is research and document the provenance. No legitimate auction house or collector will touch this if there's any doubt about authenticity or legality of the making and each subsequent transfer of the tape.

Second, please also be cautious about being certain you have the right to sell the physical recording itself. The U.S. has a legal doctrine ("first sale") that covers this, but first sale is NOT the law universally around the world.

Finally, one thing that will be very helpful to you in doing the work on provenance is that you may discover that you do own the rights in the recording, or at least have a credible claim to such ownership. Remember that music copyrights are double-barreled: there is a copyright in the composition, owned by the song-writer or his or her assignees, and a copyright in the particular recording of the composition, usually owned by the record label or whoever paid for the recording session. And the beautiful part about owning the copywrite in the performance (in the United States, and in a number of other important jurisdictions) is that you don't need the permission of the owner of the copyright of the composition to exploit it in many (but not all) forms and media. When you exploit in those forms and media, you do have to pay that copyright owner a fixed schedule of royalties, but they have no say about it.
posted by MattD at 5:54 AM on February 9, 2014

Relevant Mefi post from 2006: Velvet Underground acetate found at a garage sale sold for $150K. Copyright issues are likely similar, but there's a precedent for selling this sort of thing for lots of money.
posted by Gortuk at 6:15 AM on February 9, 2014

As an aside, when/if you finally do settle the matter, please do 'fess up as to who and what you have. Inquiring minds and all that.
posted by IndigoJones at 8:15 AM on February 9, 2014 [3 favorites]

I'm assuming these are tapes. If you are going to play them you might want to have a pro check them out first. Magnetic tape degrades over time. Presumably a buyer would want confirmation that there's something on the tapes.

An article that may be of use to you on someone who found some old recordings, and was offered $100,000 by the artists.
posted by yohko at 8:20 AM on February 9, 2014 [1 favorite]

Response by poster: I've gotten an okay to reveal details from the owner, who isn't as secretive as I'd thought.

What we've got is two 1/4" reel to reel tapes of Glenn Gould playing Chopin. These were bought from the estate of Larry Lake in Toronto, who was an engineer who did work for CBC and a friend of Gould's. Our theory is that the tapes were given to him by Gould. My friend has located a video still of Gould in the studio with one of these tapes (identified by the number on the side) in the machine. According to all research, these tapes have never been reproduced or published.

My friend, the owner of the tapes, seems convinced that they are worth a fairly huge amount of money. I'm a lot more cautious and somewhat dubious, but realize it's at least possible. Apparently tapes of Gould playing Chopin are far more rare than Bach, as he was a devotee of Bach and didn't really even like Chopin.

Anyway, there's the story. Any feedback would be appreciated.
posted by crazylegs at 4:11 PM on February 9, 2014 [1 favorite]

Gould has some really fanatical followers. His record label (Sony Classical) and his estate (represented by Toronto lawyer Stephen Posen) have been active in making newly released Gould recordings available to the public. I agree that the tapes could be very valuable. How interested the estate would be might depend on a few things: the quality of the musical performances; the repertoire (hopefully not the B minor sonata, which is already available in a performance by Gould); sound quality; how much releasable music is there (good takes of major works vs. an hour of sessions full of repeated takes of a single piece). There's also the question of whether this material is also in Gould's private collection which the estate has already.

But most of that wouldn't matter to a private collector. Any recording by Gould that hasn't circulated before now, especially repertoire he didn't record otherwise, will be highly sought after.
posted by in278s at 9:41 PM on February 9, 2014 [1 favorite]

Okay, that's cool, thank you for sharing.
posted by IndigoJones at 3:56 PM on February 13, 2014