FSD Feature: Copyrights & Wrongs – Chance’s Acid Rap Billboard Charting & How Indie Artists Can Combat Bootleggers

FSD Staff

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If a copyright is not registered, then if the artist takes the infringer to court and wins, the artist cannot receive statutory damages but instead is limited to “actual damages” (i.e. lost profits), which can be difficult to prove. For example, with Chance the Rapper’s bootleg charting case, the issue of actual damages could have hypothetically resulted in prolonged litigation, since Chance was giving the album away for free, so lost profits would have been difficult to prove (at least in terms of monetary value). Additionally, copyright litigation could have posed a different set of complicated problems for Chance and his team, since artists and labels often bypass the sample clearance process for free mixtapes. But the headache-inducing topic of sample clearance and copyright law is best left for another day…

So after the copyright is registered, how should an artist handle bootleggers? The next step is to actually track down the infringing company or individuals. This can be the most difficult part, and if infringement is rampant, it can be nearly impossible to track down all of the guilty parties. The best way to begin the hunt is to obtain one of the bootleg copies and study it for physical clues. In the Chance case, Chicago Reader investigative reporter Leor Galil located the infringing “label” through a logo that appeared on one of the illegal copies. He was also successful in looking up the product’s UPC code on gs1.org, which is an online database of product UPC codes. However, if the bootlegger simply copies the logo of the original label and successfully reproduces the UPC code, then you must look into the chain of distribution to find the guilty parties.

To start, artists should search for infringing copies on the product pages of Amazon and other online retailers. In the Chance case, the distribution company that delivered the illegal copies to Amazon was located through information available on the product’s Amazon page. If you can trace the illegal copy to the website of an illegal manufacturer, distributor, or retailer, then you can use WhoIs.com to find the owner of the domain name, who will sometimes be the owner of the business enterprise. If you find an illegal copy in a brick-and-mortar record store, deliver a cease-and-desist letter to the store owner and ask that the store owner give you information about the product’s distributor (perhaps in exchange for immunity). Remember that distribution companies and retailers are just as liable for copyright infringement as illegal product manufacturers, so always send cease and desist letters to distributors and retailers in order to make sure that circulation of the illegal copies is stopped at every step of the product-to-market process.

Once an infringer is located, send your cease-and-desist letter (templates can be found all over the internet) and demand an “accounting for sales” and payment of damages representing lost profits. If the bootlegger does not cooperate, you may consider filing a Complaint for Copyright Infringement in your local federal district court (you’ll probably want a lawyer if it goes this far). Hopefully this will result in a nice out-of-court settlement from the wrongdoers, and you can go back to focusing on your art instead of chasing bootleggers. It is neither an easy nor simple process, but in today’s music business, independent artists must be diligent and aggressive in protecting their copyrights, especially since they do not have the advantage of major label guard dog lawyers.

John Miranda is a Chicago-area lawyer, consultant, and music enthusiast. Learn more about his background and services at www.FelizMedia.com.

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1. http://consequenceofsound.net/2013/09/chance-the-rapper-says-he-has-no-reason-to-sign-with-a-record-label/
2. http://www.billboard.com/biz/articles/news/legal-and-management/5650665/chance-the-rapper-with-acid-rap-mixtape-meets-the
3. http://www.nytimes.com/2005/06/16/arts/music/16sann.html?_r=04. http://www.chicagoreader.com/Bleader/archives/2013/08/16/who-made-the-bootleg-acid-rap-cd-that-hit-the-billboard-charts

  • Show Comments (1)

  • Lozza

    interesting article

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