105 Misc. 2d 474 | N.Y. Sup. Ct. | 1980
OPINION OF THE COURT
In what is purported to be a first prosecution of its kind in New York State, Paul Winley was convicted on all counts of a 22-count indictment. Eleven counts charged that the defendant “cause[d]” the manufacture of “unauthorized recording of sound” (Penal Law, § 275.05), and 11 counts charged the “advertisement and sale of unauthorized recording of sound” (Penal Law, § 275.10). The attorney for the defendant has moved to set aside the various verdicts for the reasons hereafter discussed.
The evidence showed that on or about March 5, 1979, Detective James Rodriquez of the New York City Police Department approached the defendant and sought to pur
Rodriquez and Winley negotiated a price of $1.50 each for 4,000 records, or $6,000. Winley insisted upon and received from Rodriquez, in New York County, a down payment of $2,000 which Winley said was demanded by the company which would press the records as a condition to manufacture.
From the evidence it appears that the two Winley records containing the 11 allegedly illicit recordings were pressed in Rahway, New Jersey, picked up there by the defendant in his station wagon, and returned by the defendant to his office in Manhattan. On the same day that the records were obtained by Winley from New Jersey, Rodriquez appeared at the defendant’s place of business to “conclude” the transaction. Winley caused all the records to be loaded into Rodriquez’ truck, whereupon Rodriquez instead of paying Winley the remaining $4,000, arrested him and charged him with these offenses.
The first issue with which we are confronted is whether any of the manufacturing was committed in the State of New York, within the meaning of the statute (GPL art 20). The manufacture of unauthorized recordings of sound was complete when the records were pressed and in condition to be played. Certainly, the crime of manufacturing was complete no later than the time when the completed records were inserted in albums ready for delivery to the defendant’s customer. From the evidence before the jury,
The People clearly established that the proprietor of the factory at which the records were pressed would not have manufactured them without an advance payment. Winley, in turn insisted upon and received from Rodriquez, in New York County, all or part of the sums necessary to induce the New Jersey company to press the records. The jury could have properly concluded beyond a reasonable doubt, that but for this solicitation and receipt of funds, the records would not have been pressed.
What constitutes a “cause” of an illegal act is not defined in our Penal Law and we are cautioned to avoid definition by analogy to tort proceedings (People v Kibbe, 35 NY2d 407, 412, citing People v Rosenheimer, 209 NY 115, 123). “Cause” of a crime has been variously defined. The American Law Institute, in its Model Penal Code (proposed official draft [1962] § 2.03, subd [1], par [a]) defined conduct as, “the cause of a result when: (a) it is an antecedent but for which the result in question would not have occurred”. Similar “but for which” tests have been adopted in several States (cf. Ark Stat Ann, § 41-205; 11 Del Code
The United States Supreme Court (Pereira v United States, 347 US 1, 8-9) and the New York Court of Appeals (People v Kibbe, 35 NY2d 407, supra) have dealt with the sufficiency of a cause where other elements were involved in accomplishment of the final, criminal result. In Kibbe (sub nom. Henderson v Kibbe, 431 US .145, 155-156, supra) the United States Supreme Court said, “an adequate instruction would have told the jury that if the ultimate harm should have been foreseen as being reasonably related to defendants’ conduct, that conduct should be regarded as having caused the death”.
By any test, Winley caused the records to be manufactured in New Jersey; and it is clear that his order would not have resulted in their manufacture in the absence of the prepayment to the record manufacturer. By securing the funds in New York from Detective Rodriquez for delivery to New Jersey, Winley engaged in conduct in “this state sufficient to establish * * * [a]n element of [the] offense” (CPL 20.-20, subd 1, par [a])
The motion to dismiss by reason of alleged entrapment of the defendant need occupy little of our time. Unquestionably, the defendant was encouraged to commit the crime by a public servant seeking to obtain evidence against him for the purposes of criminal prosecution, but the jury had more than enough evidence to conclude that the defendant failed to sustain his burden (Penal Law, § 25.00, subd 2) of proving that the detective’s conduct created “a substantial risk that the offense would be committed by a person not otherwise disposed to commit it” (Penal Law, § 40.05). Winley’s past history of pressing and selling these very recordings would rule out entrapment.
A difficult issue with respect to some of the counts of the indictment was the statutory requirement that the People prove that the defendant caused the records to be manufactured for profit or sold them “without the consent of the owner” (Penal Law, § 275.05, subd 1; § 275.10, subd 1). The statutory definition of owner (Penal Law, § 275.00, subd 2) is of little help. It defines “owner” as “the person who owns the original fixation of sounds embodied in the master phonograph record, master disc, master tape, master film or other device used for reproducing sounds on phonograph records, discs, tapes, films, or other articles upon which sound is recorded, and from which the transferred recorded sounds are directly derived.”
The predecessor statute (General Business Law, § 561, subd 2) defined “owner” as “the person who owns the master phonograph record, master disc, master tape, master film or other device used for reproducing recorded sounds * * * and from which the transferred recorded sounds are directly or indirectly derived.” Clearly, the later statute under which this prosecution was had, recognized that the ownership of a performance was not necessarily vested in
A performance is a property right (Metropolitan Opera Assn. v Wagner-Nichols Recorder Corp., 279 App Div 632).
Ordinarily, it may be presumed that an artist who creates a performance is the owner of that performance. Usually, however, as appears to have been the case in many of the songs with which we are dealing, those rights are determined by contract between the artist and the recording company. The proof of title to “the original fixation of sounds embodied in the master phonograph record” (Penal Law, § 275.00, subd 2) was amply satisfied by proof in the case of the Savoy claims to Reverend Cleveland’s recordings of “Amazing Grace” and “Peace Be Still.” The Savoy witness, Mendelsohn, was present when Cleveland recorded these songs; he was able to identify Cleveland’s signature on the documents granting Savoy the exclusive right in perpetuity to reproduce those recordings; and, in many of the written instruments Mendelsohn was either an attesting witness or signatory on the behalf of Savoy. The inference to be drawn from the verdict that the jury found that Savoy was the owner of these performances is beyond challenge.
As to the six songs claimed to be owned by Nashboro Record Co., no such clear ownership is shown. Nashboro purportedly obtained its rights in 1968 by written agreement with Guardian Industries, Inc., or its proprietor, the
There was nothing in these documents to suggest that Guardian Industries intended to convey to Nashboro anything but the right to buy records and resell them. Even were we to interpret this document as Shannon Williams, the Nashboro representative, would have us interpret it, that is, that Nashboro was granted by Forgasch the exclusive right to reproduce those performances, it was not established beyond a reasonable doubt that Nashboro’s grantor had the right to grant such an exclusive license. The documents submitted in support of the People’s case were a contract between Bess Music Co., as assignor of Mahalia Jackson recordings and Edgewood Corporation as assignee. Bess Music, in turn, claimed in the documents to be the assignee of Apollo Records. No proof was offered of Apollo’s assignment, much less Apollo’s original right to reproduce the particular Mahalia Jackson recordings.
The first through sixth counts involved CBS Record Co.’s claim to three other Mahalia Jackson performances, “Move
The motion to strike these exhibits is denied. These exhibits were sufficient to establish CBS’s “ownership” of the records beyond a reasonable doubt and the evidence of the defendant’s misappropriation of these recordings was sufficient to sustain a verdict of guilty on the first six counts of the indictment.
In accordance with the foregoing the motion to set aside the verdict and dismiss the indictment is granted as to
. It was the People’s contention during the trial that evidence of jurisdiction had only to be proved by a preponderance of the evidence (People v Tullo, 34 NY2d 712; People v Hetenyi, 304 NY 80). These cases support the view that in order to prove “county jurisdiction,” really venue, a mere preponderance of evidence supporting that proposition must be shown. Where so-called “State
. From the evidence it appears that all of the performances misappropriated by Winley were recorded before 1971 at which time ownership was determined by common law and not by any copyright statute (see Goldstein v California, 412 US 546; International News Serv. v Associated Press, 248 US 215, 234, 236; Fisher v Star Co., 231 NY 414, 429). In 1971 (Public Law 92-140; 85 US Stat 391) the recorded art of the performer, as distinguished from the art of the composer or arranger, became the subject of Federal musical copyright, provided that the recording was “fixed, published and copyrighted on and after” February 15, 1972 (85 US Stat 392) The copyright statute has since been amended and recodified (US Code, tit 17) by section 101 of title 1 of Public Law 94-553 on October 19, 1976 (90 US Stat 2541) effective (for the most part) January 1, 1978. It thus appears that in dealing with “ownership” we are dealing with pre-1971 concepts in which State law continues in force and no Federal pre-emption occurs until February 15, 2047 (US Code, tit 17, § 301, subd [c] ).
. It is not intended here that only proof of an absolute title will support proof of ownership sufficient for the statutes (Penal Law, § 275.05, subd 1; § 275.10, subd 1). It is conceivable, although the question is not reached, that exclusive reproduction rights might be sufficient. But whatever those rights are they must be proved beyond a reasonable doubt. Obviously, we do not deal here with Nashboro’s rights in these recordings, we only deal with the proof presented at the trial.