Ask the Law Guy

During the course of my employment as Music Director at a local radio station (1993-2000), I shot many hours of high-quality video featuring interviews & live performances by visiting recording artists. The performers involved in these video shoots were, for the most part, major label artists. Under no circumstances was the camera concealed or hidden. No contracts or "signoffs" were involved. I simply asked the performers if it was OK to record and, of course, respected their wishes (there were only 1-2 instances where a performer asked me not to record).

My question(s):

May I edit the performances into a professional dvd presentation and sell copies of the finished product? Or, may I sell the "raw footage" outright to any interested buyer?

This is strictly a seat-of-the-pants answer. Intellectual property is a specialized area of the law. The best answer I can give is mostly issue-spotting, pointing out potential problems and applying legal principles. If you are really interested in doing something commercially with these recordings, talk with a lawyer familar with copyright law.

The recordings of the performances are probably not yours to duplicate and distribute. Think of it this way: If I go to Barnes and Noble and buy a novel, the book is my property. I can legally re-sell the book to someone else. I cannot legally take it to Kinko's, have copies made and sell them.

Under the WIPO Performances and Phonograms Treaty performers have the right to control the use and distribution of their performances. The rights you have in the recordings depend on the agreement you had with the performer at the time of the performance. For example, The Grateful Dead were known for allowing fans to make recordings of their shows, but did not allow commercial sales of the tapes. I think the concert tickets contained contractual limits on recordings.

I am going to assume that what was said before the performance was "hey, do you mind if I record this?" and "uh, O.K." The agreement you had with the performer would probably be decided based on regular old contract law, think of Professor Kingsfield from "The Paper Chase." The contract between you and the performer required a meeting of the minds. When the performer agreed to allow you to record, was it reasonable to think that the permission to record included permission to distribute and sell copies of the performance? Probably not. A reasonable interpretation of the scope of the permission you got was that you could retain the recording for your own use. It is not reasonable to think that "uh, O.K." was a grant of authority to put the performance on CDs for sale to others. I think the recorded performances you have are a species of bootleg recordings. (The link is to Wikipedia, which has a great entry on these kind of recordings). You might have the right to transfer ownership of the physical recording, but any buyer would have only the right that you had (the right to personal use and enjoyment of the performance).

Different rules apply to the interviews. Unless other restrictions were imposed I think agreeing to an interview includes allowing the interviewer to publish and make later use of the interview. You could probably compile the interviews and distribute them.

Another issue is who actually owns the recorded material, you or the radio station that employed you? The station could claim that since the material was created while you were in its employ the recordings are its property.

Again, if further use of these recordings is something you are interested in doing, be prepared to spend time with (and money on) an intellectual property lawyer.

My problem is with the Town of Carolina Shores, (TCS) located in the southeastern area of North Carolina at the South Carolina border. Roughly one of my subdivision, including my house, is in the extraterritorial jurisdiction Carolina Shores. Carolina Shores has an ordinance that requires homeowners in the EJT to geta permit to remove a tree of eight inch diameter or greater. The fine for trees cut in violation of the ordinance is $500 and two replacement trees for each tree removed.

I applied for a permit to remove five pines, which have large limbs overhanging the roof and are eighteen feet of less from my home. My wife and I are seniors and are fearful that eventually one or more pine trees will fall on the house during a storm. The building inspector approved removal of only one pine tree. I don't know of a method to challenge her expertise, tree inspection is not in the building code. In telling my woes to jailhouse lawyers their opinion is only zoning laws apply to EJTs and this is the town's tree ordinance. At five hundred dollars a tree I would appreciate a more professional opinion if possible.

First, avoid the advice of jailhouse lawyers.

Next, I think the town can apply the permit rule to areas in the ETJ if the same ordinance applies inside the town. A town cannot have special ordinances that apply only in the ETJ.

North Carolina cities and towns can regulate only subjects that the legislature authorizes them to. The subjects that municipalities can regulate are listed in Chapter 160A of the North Carolina General Statutes. One of the subjects that muncipalities can regulate is planning and development. State law allows cities and towns to apply and enforce planning and development ordinances in the extraterritorial jurisdiction surrounding the municipality. The ETJ varies from one to three miles of the municipal limits depending on the population of the city or town. This means that any ordinance adopted under the town's planning and develpment authority (which is detailed in Chapter 160A, Article 19) can be applied in the ETJ.

I think a judge would likely rule that a tree preservation ordinance is part of the planning and development regulation and therefore can be applied to the ETJ. Ordinances that have nothing to do with planning and development, such as a leash law or municiapl tax probably cannot be applied to the ETJ.

There is a great article here about extraterritorial jurisdiction here.

If you want to take out all five trees you should probably go through the formal permit process. If the inspector denies the permit, the ordinance probably sets up a system for an applicant to appeal the denial of the permit. Usually this involves an appeal to a planning board and then to the town council. The code enforcement office should be able to explain the process to you.


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