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Whose Vault Is It? Amoeba Music & The Ethics Of Reissuing Records
Laurie Tuffrey , February 27th, 2013 08:34

Amoeba Music's Vinyl Vaults project, digitising rare vinyl for download, seems like a brilliant idea on the surface. However, Laurie Tuffrey investigates the questions it raises about the legal and ethical issues around reissuing older music

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Last month, Amoeba Music, the Californian independent music store giant, announced a new project as part of its website revamp. Vinyl Vaults sees Amoeba digitising their extensive stocks of rare and out-of-print vinyl, ranging from Lead Belly and Thelonius Monk to co-owner Marc Weinstein’s personal Sun Ra collection, which are then available for purchase as mp3, m4a or WAV files.

On the face of it, it’s a good idea, making music that might have otherwise lingered unplayed in the back room widely available and preserving it in a lossless format. As Amoeba say: "Vinyl is the ultimate expression of an artist's work, and we're doing our best to preserve our history!"

However, the store’s approach to the rights and profits of the Vinyl Vaults material is a more knotty issue. For the most part, Amoeba have been able to establish the rights-owners of the music; however, for those they couldn’t find, any profits from sales have been put into an escrow account, which the rights-owners can access if they approach the store.

Speaking to Variety magazine, Amoeba co-owner Jim Henderson explained the process further: "We couldn't find C.J. [70s country singer Curt Johnson]; we couldn't find a label that put the record out. But it's a compelling piece, (so) we said, 'This should be up.' [...] If (someone says), 'That's mine,' well, OK, we can either take it down or we'll sell it, and you've got this nice (digital) master. We'll sell it, we'll promote it; let's sign a contract." In essence, a fairly loose attitude to both copyright and profits.

Shortly after the news was announced, the Quietus was contacted by an independent record label insider, who put forward a number of concerns about Amoeba’s project: "For the few surviving labels like us, who spend months, even years, tracking down and socialising with the original artists, it resembles a kick in the teeth and, if they get away with it, an almost penultimate death blow."

They added: "Amoeba is one of the biggest stores in the world, with an unfathomable influx of (copyright protected!!!) music coming through their racks... this abusive kid-in-a-candy store/mine-sweeping mentality is basically akin to mass looting! Heaven help any small label or stand-alone artist who rightfully had a precious plan in process for re-presenting their own music.

Continuing, our source pointed out that making profits available in an escrow account as payment presumes that the original artist and label concerned are initially aware of Amoeba: "What about the huge, huge, huge majority of elderly or dead artists, who are quietly naive to Amoeba’s egotistical operation?

"In simple terms, an 'obscure record' is invariably a 'rare and out-of-print record'... it's rare for a reason, because the artist had bad luck first time round... so why would you kick them again 30 years down the line?"

Through putting in place the escrow system, it appears as though Amoeba have sought to establish themselves as the de-facto owners of the music. By doing so, they ignore the well-established process of re-releasing music that a host of dedicated reissue imprints have been practising for years, and are also taking profit from the sales, payment that gets shared only when and - perhaps more crucially - if the actual owners come forward.

"Much as I love Amoeba, I think this is a bit odd," says Jonny Trunk, owner of Trunk Records, a long-running reissue label. "I have looked at their Vinyl Vaults section, specifically in the area I specialise in - film music, TV music, library music, electronics - and many of the albums they have for download are easily licensed. This is done by phoning up the libraries and doing a simple licensing deal. All theses libraries are still operating and easily found and contacted (e.g. Selected Sound, De Wolfe, Kpm). Some of what they have up for sale digitally should not be there, unless they have a license, but what they have up for sale (that I can see on a quick scan) is so random that it looks like it has not been licensed at all.

"I think if the albums they have for sale digitally are genuinely impossible to trace (in terms of ownership) then I see no problem with this - in fact it has been standard practise for a few years if the original artists of an obscure/private album have disappeared off the face of the earth. But to have library music up there as downloads without licensing it is not right. And it's very easy to license these days.

The impossibility Amoeba cite in tracing the albums' copyright owners is in itself questionable. As has been pointed out on the Very Good Plus message board, the album My Lady’s Eyes by C.J. that Henderson name checks is on the Ovation label, as demonstrated by the third result on a Google search. Our insider also added that they have had first-hand experience in this regard: "A track from our own catalogue actually appeared on the website two weeks ago, without anybody contacting me or the artist. My label is not at all difficult to find, which proved that their 'best efforts' to contact the rights holders are less than adequate. The track has since been removed!"

Trunk continues: "I like the idea behind this Vaults concept, especially with 78rpm recordings, period rarities and out-of-copyright material. Most albums and artists from the late 1960s onwards, however obscure, are traceable these days, or you can certainly get near. If they start out with this slightly cavalier attitude (e.g. releasing De Wolfe material for download without a license for example), they are going to have to deal with a whole load of legal crap coming at them from all over the place, and a whole lot of dedicated reissue labels who spend months and years sometimes finding lost artists are really going to get pissed off."

As Trunk points out, Amoeba look to have crossed both ethical and legal boundaries. While the escrow account element would seem to be a pre-emptive attempt to overcome any problems with regards to ownership, does this actually hold any legal weight?

"Not really," says Jeffery Daar, principal at the Daar & Newman law firm in Los Angeles, who specialises in intellectual property and entertainment law. "Unfortunately, even well-intended efforts in the United States to make available out-of-print music are fraught with risk. While holding in trust the proceeds from downloads may be a legitimate solution, the commercial use of the tracks without the permission of the rights holder(s) would seem to be technical infringement. While it may not be willful infringement, the risk is serious. Amoeba's use of an orphaned work without permission runs the risk that the copyright owner(s) may bring an infringement lawsuit for substantial damages, attorney's fees, and/or injunctive relief."

Looking at the project as a whole, Daar explains that Amoeba may have left themselves open to legal challenges: "While I applaud the spirit of the Vinyl Vaults project, the copyright laws of the United States are a significant obstacle to any such effort. Unfortunately for Amoeba and music fans, U.S. copyright laws governing music are antiquated. Basically, unless a music composition was published before 1923, most compositions remain under copyright until 2019 or later. Much of the types of work in the Vinyl Vaults project will likely be protected until 2067. Accordingly, any project such as Vinyl Vaults must give serious consideration to avoiding copyright infringement claims made by copyright owner(s).

Daar adds that the rare nature of the music in Vinyl Vaults provides no defence legally. "The United States copyright laws do not contemplate or provide an exemption for out of print music compositions. In addition, there is no legal excuse for infringement even if it is done in good faith and the money from the infringement is held in trust. Accordingly, unless Amoeba has the express permission of the correct copyright owner(s) it runs the risk of being liable for copyright infringement," he says.

"U.S. law is far from clear on how to deal with orphaned works, which is music where there is no clear knowledge of ownership. With the Vinyl Vaults project, Amoeba is charging for each download of its digitised and remastered tracks. Amoeba may be acting above board in its claims that it first seeks to track down and obtain the permission of rights holders (assuming who owns the rights is going to be clear) and then hold in trust the money paid for downloads for those it cannot find. However, it would appear that for such tracks, Amoeba may be found guilty of infringement if a copyright owner came forward and brought a copyright infringement lawsuit."

It should be added that, in almost all respects, Amoeba do an excellent job: they are the largest independent record store in the world, with three huge premises in Los Angeles, San Francisco and Berkeley, which not only do a strong line in in-store performances, but harbour acres of expertly-stocked record racks. Both our insider and Trunk prefaced their answers by making clear their love for the company, while Daar writes: "As an avid purchaser of both new and old music based in Los Angeles, I must first note that Amoeba Music is an amazing place and one of the last surviving places in California to buy music. The store in Hollywood has to be seen to be believed, since it is an entire city block."

Additionally, Trunk adds: "The other side of the coin is to remember that rare and obscure music has been appearing illegally on blogs, etc, for years now - Amoeba’s project may well be a way to create a fund for these forgotten artists, and it's highly unlikely that any of these really obscure albums will generate anything financially significant. My one experience of putting out an LP with no label owners (I licensed it from the artists' widow) ended up with the label owners' son eventually finding me one year later, being thrilled at the LP existing and wanting all proceeds given to charity."

This should hopefully be the case, with Vinyl Vaults giving some high-profile visibility and profit to long-lost music. However, it remains that Amoeba’s initial approach reflects a more worrisome mindset. The release of music without license from the copyright owners could present the store with a series of legal difficulties, which their practice of laissez-faire salesmanship may render tricky to negotiate. Moreover, the Vinyl Vaults project sidesteps many of the basic principles of reissuing music, putting profits ahead of ethics - and in the process risks consigning some labels, whose tireless work has resulted in the records that fill their shelves, to a vault of a different kind altogether.

Amoeba were given ample opportunity to respond but declined

adapteradapter@gmail.com
Feb 27, 2013 1:52pm

Yeah, saw this over on Waxidermy...they are gonna get sued so hard.

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Post-Punk Monk
Feb 27, 2013 2:07pm

Good faith?! Escrow accounts?!! How does this make Amoeba any different from a bootlegger? I've seen Italian bootlegs with much the same moral figleaf added to the packaging. It strikes me as incredibly wrong-minded theft. They've got some crust! While OOP music represents a problem to the music lover, [not to mention the artist] this is most definitely not the solution.

http://postpunkmonk.wordpress.com
For further rumination on the Fresh New Sound Of Yesterday®

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A Clockwork Lozenge
Feb 27, 2013 3:26pm

So that's nice. A store whose entire ethos is built upon making money out of the work of musicians without ever paying the musicians - because, let's face it, that's what second hand record shops do - now finds a second way to rip them off. Granted, it's tragic that so much music runs the risk of being lost to the world forever, but this is not the solution.

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Chris
Feb 27, 2013 5:09pm

"Through putting in place the escrow system, it appears as though Amoeba have sought to establish themselves as the de-facto owners of the music"
Precisely. They know exactly what they are doing. xxxx years down the line they will claim the music is theirs, and should you wish to use it it will cost you. Basic bootlegging theft.

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morgan
Feb 27, 2013 6:40pm

In reply to A Clockwork Lozenge:

Amoeba sells a lot of new stuff, not just used.

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Spacious
Feb 27, 2013 10:50pm

Thank you, Clockwork Lozenge.

I like Amoeba and shop there regularly. I particularly enjoy finding out-of-print rarities there and purchasing them for a reasonable price.

But if I've learned anything from the Piracy Wars of the last two decades, selling and reselling pieces of plastic that oh-by-the-way-just-happen-to-contain-copyright-protected-works, has no actual relation to the legal compensation of artists and labels for their work. Since this ambiguity lives in the heart of collectors of plastic discs everywhere, it goes mostly unaddressed. Even by myself.

So, it's perfectly OK for Amoeba to sell a rare Sun-Ra record for $100.00, but it's not permissable for them to sell a cheap digital copy for a few bucks? The difference being, of course, that when the rare record exchanges hands, the Arkestra gets soundly fucked. The questionably legal sound files might actually result in $$ for the musicians someday. Somebody stop this immediately!

Only a lawyer could love the music industry.

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Bob
Feb 28, 2013 1:11pm

It's a bigger travesty, that all that vinyl at the San Fran store and they don't have turntables to listen to it...

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Feb 28, 2013 2:40pm

Amoeba moving into this is weird but big deal; Brits and other Euros have been living off copyrighted American music for DECADES and, generally, I'm glad they've done so, though outfits like JSP pushed the bounds when they ripped off another reissue label, Bear Family, and got nailed for it. (JSP had previously been a well regarded 'boutique' label so that move was especially strange.)

Not sure what Amoeba can offer that aforesaid Euros don't already hustle, though not always in the best sound quality of presentation (especially certain Andorrans) but what the hell?

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5onthe5
Feb 28, 2013 3:33pm

"Vinyl is the ultimate expression of an artist's work"

YAWWWWWNNNN

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Matt
Mar 1, 2013 12:39am

Libraries have been doing this with rare/out of print books for some time. The legality is in question, but there should be some argument that preservation of something that otherwise would not exist is a compelling legal argument for doing this in the first place.

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Peter
Mar 1, 2013 5:48am

In reply to Spacious:

Your post raises more good questions. My first reaction is that any rare Sun-Ra record would immediately sell more than 100 digital copies, but I agree with you that POSSIBLY paying artists to sell multiple copies of their used work is a way better deal for them than a record store just selling it once.

From a preservation angle though, I feel like it makes no difference if they sell things, put them up for free, or simply digitize the vinyl and do nothing with it - so the decision to sell them at all feels profit motivated. And why not sell the records online instead?

My gut feeling after reading this is it's a good/interesting idea but they need to do their homework a lot better.

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John Doran
Mar 1, 2013 9:53am

In reply to Spacious:

I don't want to come across as patronising but you do realise there's a big difference between a second hand record and newly manufactured music, whether digital or physical? I don't think anyone expects to get paid for the same old LP over and over again each time it gets sold in a charity shop. The idea is ridiculous.

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Bill@live.co.uk
Mar 1, 2013 1:10pm

In reply to John Doran:

It is true though, that it's a little bizarre that records get sold on...and on and on, and the artist never gets any more cash from the sale.

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Chris
Mar 1, 2013 3:07pm

In reply to Bill@live.co.uk:

You could say that about any second hand artifact....
Seems to me what Ameoba are trying to do is claim the ownership rights of an artists work, and putting a little pot of cash aside should there be any legal challenge.

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post punk monk fan
Mar 1, 2013 7:54pm

In reply to Post-Punk Monk:

weird!i read your blog,its ace!
btw please stop writing about the police,they aint ace :)

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hi
Mar 1, 2013 7:58pm

wont bother attempting to put into my words what i think of this,no point really,laurie has already summed up the issue perfectly.

as always a great piece of writing

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Spacious
Mar 1, 2013 8:57pm

In reply to John Doran:

"I don't think anyone expects to get paid for the same old LP over and over again each time it gets sold in a charity shop. The idea is ridiculous."

Yes, the idea is ridiculous. By the way, what’s the difference between a second-hand CD and a newly manufactured one? What’s the difference between a freshly minted MP3 and a pirated copy of it? What’s the difference between Amoeba’s Vinyl Vault and countless vinyl Blogspots? Why can’t I sell a hard-drive full of used MP3s to Amoeba? Why is a raven like a writing desk?

It sounds as though you agree with me that copyright is broken and the law has nothing to do with compensating people for their work.

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John Doran
Mar 1, 2013 10:29pm

In reply to Spacious:

In very loose terms the new CD has been issued on behalf of the artist or people representing the artist by a record company. This is, among other things, how the cost of the recording is met. Then it's up to the new owner to do what they like with. I'm sorry if your amazing polemic failed to knock the scales from my eyes.

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John Doran
Mar 1, 2013 10:30pm

In reply to Bill@live.co.uk:

Why is it odd? Do you think car manufacturers deserve to get paid every time a car gets sold on?

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Spacious
Mar 2, 2013 12:02am

In reply to John Doran:

I won't be agreed with in that tone! Good day, sir!

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Post-Punk Monk
Mar 2, 2013 2:50pm

In reply to post punk monk fan:

post punk monk fan - Thanks for the compliment. I kind of vacillated on writing about The Police. But I got the rare urge to hear the box and one thing led to another. I'm more of a Klark Kent fan. Sorry for starting an off thread dialogue, eds.

http://postpunkmonk.wordpress.com
For further rumination on the Fresh New Sound Of Yesterday®

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Mike Pailthorpe
Mar 3, 2013 8:39pm

Your interviewees Trunk and Daar are more even-handed than your "independent record label insider". Sadly, anonymity has brought out his/her inner troll:
"abusive...mass looting...Amoeba’s egotistical operation" s/he exclaims!
This muddied the waters for me. Angry people are a bit too keen to apportion blame.
The section about the dates
" Basically, unless a music composition was published before 1923, most compositions remain under copyright until 2019 or later. Much of the types of work in the Vinyl Vaults project will likely be protected until 2067"
starts to sound very confused between the recording copyright and the song copyright. It looks like your lawyer's comments have been edited for brevity, not clarity.
Thank you - an interesting article, but a little flawed by your angry mr/ms insider, and some strange copyright date-juggling.

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LR
Mar 3, 2013 11:11pm

Another note of not doing proper research: I had just purchased Brother John Rydgren's "Silhoutte Segments" reissue from Omni World - and Amoeba had a bootleg version in their store, only added a few months ago. It has since been removed - but they sure aren't trying hard enough to track down the owners before posting.

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Jason Taverner
Mar 10, 2013 10:59am

"...an almost penultimate death blow."

I'm curious as to how by definition there can be more than one death blow.

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julio
Mar 12, 2013 5:59pm

well, let's be serious: what amoeba is doing is the same thing italian boot labels did in the nineties. it's robbery disguised as social work. if they REALLY want to spread this music why not take the costs, put it free on the net and wait it's owner's come to talk about the money before start any operation who will generate profit?

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Nick
18 hours ago

After reading this, it just confirms that this place is run by thieves. Amoeba Records are a rip off, please avoid at all cost. They don't know how to grade CD's or LP's. They will reseal a record and try to sell it as new. My friends and I have had this happen a few times.

They will also rip you off if your selling your records. I took about 150 CDs in Near Mint to Very Good + condition (there were a few rare CDs in the lot). They offered me $30 for 150 CDs. I took the same collection to other records in Los Angeles County, just to see what they would offer. All the other record stores offered me $100 and up.

Please avoid this store at all cost. They will rip you off.

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