Re: [rumori] Fwd: Press the Button

From: Jeff Robins (
Date: Sat Dec 14 2002 - 10:00:37 PST

It is difficult to determine from Jassen's accusatory email whether he is
speaking as a representative of WRUW management or as a non-authoritative
individual. Likewise it is not clear whether WRUW management ever had
knowledge of, or gave approval for, your selling of PTB CDs.

If WRUW management had been in the dark about the selling of PTB CDs, then
I think you need to smooth things over with management. If management
tries to make some of the same arguments that Jassen has made, you should
make the following arguments in defense:

     (1) If it is true that programming that is broadcast over the
airwaves of a noncommercial radio station cannot be sold for profit, then
how come the Walt Disney Company (Mammoth Records) can sell its "KCRW Rare
on Air" CD series, featuring programming that first appeared live on the
airwaves of a noncommercial station affiliated with Santa Monica College?
As long as the creators of Press the Button are not paid employees of WRUW,
nor are voting members of the nonprofit corporation who holds the station's
FCC license, then I think you can make a good analogy here.

     (2) An artwork is not copyrightable until the point at which it
achieves the state of "fixation." Because of the live, mostly
improvisational nature of your show, the fixation of Press the Button
presumably does not occur until the point at which you actually broadcast.
But does this immediacy give WRUW a copyright interest in your work that
they wouldn't have for less immediate programming? I would argue that you,
as the creators/performers of PTB, are the rightful copyright holder of
your artwork and WRUW inherently has no more of a copyright interest in
your work than a recording studio would have in a conventionally-recorded CD.

     (3) Fair use is a four-pronged defense to the infringement of
copyrighted works. In judging the applicability of the FU defense to a
particular situation, one must balance each of the four prongs against each
other and make a judgment based on the totality. No one prong can
single-handedly supersede the other three factors. Under the "purpose and
character of the use" prong, it is true that you would have *less* fair use
protection when your infringing artwork is used in a commercial setting
(selling of CDs) than in a noncommercial setting (WRUW airwaves). However,
"purpose and character" also takes into account factors outside the realm
of commerciality, such as how transformative was your use of the samples.
Further the other three prongs of the FU defense (length of samples, effect
on the marketability of the sampled work, nature of the sampled work) would
likely go to your advantage irrespective of whether you are selling your
program for profit or not. I would suggest that you might want to tell
Jassen to glance over the Supreme Court decision in the 2 Live Crew / Roy
Orbison case (1994) because there's a definite parallel to your situation.

Having said all that, I do believe that it is within the authority of
station management to require programmers to get permission to sell their
broadcasted works off-air. I also believe that if PTB is somehow actually
deriving a "profit" from the CD sales, then some/all of that money ideally
should be used to enhance the equipment/resources of PTB and/or WRUW. But
those are *internal* issues to be worked out between you and the radio
station. Do not let Jassen's overarching yet simplistic appeal to "law"
scare you away from defending your activities.

Jeff Robins

At 12:06 AM 12/14/2002 -0500, Every Man wrote:
>Is it truly illegal for us to sell copies of our past radio shows?
>>This email is sent to Every Manand the Exec Staff mailing list...
>>>A chill ran down my spine when I was asked "has management ever had an
>>>issue with your show?" It just dawned on me at that point...
>>I heard on WCPN today that Press the Button would be on Monday's Around
>>Noon. So I surfed over to to see if there was anymore
>>info. I surfed to the site before to find out information on the Recycled
>>Rainbow events - but I didn't really look through it.
>>What I found today troubles me...
>>Press the Button is selling its archived shows for the past five years.
>>1) It is illegal for a person to profit from the activities of a nonprofit.
>>2) In my opinion, Press the Button is probably violating copyright law
>>and is possibly committing an unauthorized use of property (theft) for a)
>>selling off-air rebroadcasts and b) re-selling other individuals'
>>copyrighted material without permission or license.
>>Violating copyright law is a Federal offense and unauthorized use of
>>property can be a felony.
>>Press the Button may say that what they are doing is fair-use of
>>copyrighted material. Fair-use does not apply when a person has a
>>financial motivation to violate copyright. One relevant example...WRUW
>>has several shows that from time to time broadcast bootleg recordings
>>(MP3s download of Kazaa or whatever P2P network or live field
>>recordings). Broadcasting these recordings is probably fair-use since
>>they are provided for educational purposes and are free of charge.
>> From past conversations with Jay I know that we have differing opinions
>> on sampling, copyright and "re-media." However, when I found that they
>> were selling the recordings a difference of opinions tipped to a legal
>> and ethical dilemma.
>>If the consequences of selling the CDs was not completely considered, I
>>suggest that Press the Button immediately stop the sale of the CDs and
>>return all gross revenue from the sale of the CDs to WRUW. I would
>>appreciate a response from Press the Button on my two concerns. Further, I
>>am not impressed by copyright folklore/myth or technicality explanations
>>such as the price of the cd equals the cost of production - one penny is
>>still profit.
>>I am not arbitrarily jumping on an issue. Nonprofit and intellectual
>>property issues are serious ethical and legal areas for me.
>>A quote off the Internet from Common Sense by Thomas Paine.
>>"A long habit of not thinking a thing wrong, gives it a superficial
>>appearance of being right."
>>Found at
>Every Man
>Press The Button, Midnight - 3 am Monday Mornings EST
>WRUW, 91.1 FM, Cleveland, OH [Phone 216.368.2208]
>ICQ# 20100376
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