This question had occured to me before reading this thread but some of the same information may apply. I read a story the other day stating that Eminem was planning on incorporating some answering machine messages recorded by Mariah Carrey on his machine into a work to be commercially released. Who owns the message, the content and the copyright? If I remember the JD Salinger letters case, my IANAL WAG is that Eminem could sell the answering machine tape itself but Mariah would retain the copyright to the contents. Any law or cases more on point?
You’ve got it right, Otto. Eminem can sell the tape itself, but he does not own the copyright to the recording. Mariah Carey does, and/or any record company with whom she is under contract.
Actually, the record company’s claim would be tenuous, but Carey definitely would own copyright of the tape.
Agreed – this seems to be no different than the situation with letters, and the law in that area is well-settled.
(If the message is short – and especially if Carey comes off particularly loopy – then the use might be permitted over Carey’s objections, but because the use is fair, not because Eminem holds the rights.)
In that case, who owns a copyright where to people are recorded? How do comedians like Jim Florentine or the Jerky boys release those tapes?
Actually after thinking about it…I’m unconvinced that Carey would own the copyright. If it’s ememim’s machine…then he did the recording…perhaps by absentee…but he never the less set up the recording device.
Same as in photography…If I take a picture of you, I own the copyright. I may need a release from you…but I own the copyright.
Carey without question owns the content of the speech – she “wrote” it; it’s hers. But you bring up an interesting point, metroshane. The Copyright Act considers sound recordings as separate works from the material that is recorded. In this case, the recording of Carey’s voice speaking the words is separate from the words themselves. I still say Carey owns that, too – sound recordings are owned by the performer who creates them, absent an agreement to the contrary.
One might argue that given the way answering machines work, any reasonable person would understand that by leaving a message on a machine, she was being recorded, and that such understanding was in itself a form of agreement to let the owner of the machine own the recording as well. That’s a legitimate argument, but I think it’s a faulty one, because there’s nothing intrinsic in this process that requires that the recording belong to the owner of the answering machine. Indeed, I think the better view is that the owner of the machine consents to allow others to record their own material on his equipment. (Although the machine owner still owns the actual recording, as contrasted with the copyright to the recording.)
Even were the above analysis incorrect and a court were to hold that Enimen owns the rights to the recording, he wouldn’t have right to reproduce it because as noted above Carey still owns the rights to the speech itself. (Setting fair use aside for the moment) The analogy to the photograph is a faulty one – a photographer chooses composition and placement of his subject and thereby creates an original work separate from the face of his subject. However, no matter how many times you photograph me, it’s still my face, and you never own that. Similarly, the speech is Carey’s no matter who owns a recording of it.
I’d like to see how this plays out. YOu have good points, so I could see it going either way.
I like Mariah Carey’s take on this: