While the corpses of corporate music retail chains litter strip malls where outlets like Tower Records and Blockbuster Music once stood, Amoeba Music is an independent juggernaut with three California-based stores the size of supermarkets. They've been a destinations for music aficionados for more than two decades, places that shine the light on small artists and labels and give fledgling releases an audience that, in many cases, they might not attain in big box stores.
A large part of Amoeba's charm is the thousands of used records that are traded in and given a chance at a second life in their used bins. But its latest project has many folks talking about copyright law.
As used vinyl comes through the doors of the store, employees have been culling albums to record, master and then sell digitally the songs on the new Vinyl Vaults section of their website. You won't find the last Radiohead album there or other big time releases from big time artists. The focus is the left-of-center, the self-released, one-off singles recorded in someone's basement; it's become an absolute treasure trove of old blues ripped from shellac 78s and unreleased psychedelic workouts. “We've been doing this a few years and in the course of buying stuff at our trade counter we've found some amazing vinyl artifacts that, [we've discovered] through our research, are not available digitally,” says Jim Henderson, who co-owns the stores.
Henderson says most of the material available in the Vinyl Vaults is in fact licensed, but admits some of the works are not. This is where things get sticky. “If we deem that it's not available digitally, then we try to make contact with the person who owns it. If the person who owns it is interested, we send them a copy of our Vinyl Vaults agreement, do a deal, and put their project up. Make a digital master of the record and clean it up. If we can't find the rights' holder, we have a decision to make — if it's something that we think we can put up and help expose to the world. If it's something that belongs to somebody, it says right there on our page that we will take it down or make a deal.”
While giving customers access to music they crave (and otherwise may not be able to attain) is the dream of every record store, the legal ramifications of selling unlicensed releases remain unclear.
“The classic line is it's easier to beg for forgiveness than ask for permission,” says Rob Sevier, co-owner of the Chicago-based Numero Group, a label that specializes in reissuing lost and forgotten relics of music and has garnered a trio of Grammy nominations by doing so. “We go to people who 40 years ago did something that nobody has spoken about since. But you come to them and say you want to do it and show them a simple agreement and you get, 'I don't know if I want to do this.' It's a no-brainer of the century that someone is going to offer you a little money.”
“We're trying to do the right thing here,” says Henderson. “100 percent of anything that we're selling that we don't have an agreement for is going into an escrow account.” But no matter if Amoeba has the best of intentions; selling copyrighted material without contract from the rights' holders could be problematic.
|Interior of SF Amoeba|
Temple Law Professor David Post teaches copyright law, and recognizes the issues at hand. “This has become a big enough problem in copyright law that this now has its own name. They're called Orphan Works,” he says. “Sound recordings before 1972 were protected under state law. People have died, left things in their will, their heirs have died. There's no central repository of copyright ownership information that's comprehensive.” But just because you can't find a copyright holder for an orphaned, self-released folk record that never sold a single copy doesn't lessen the possible liability.
None of this seems to sit well with Sevier and the Numero Group. “People are very cagey in this day and age because there's so many scams. It's an uphill battle to license this stuff. That's the shortcut they're taking” by digitally recording works even when they can't find the copyright holder. “Regardless of legalities and moral issues, my problem is they're making it harder for us. They're adding to the noise of bootlegging and distrust that's already out there. They're making it hard to do something that's quality and legitimate,” he says.
Henderson feels differently about Amoeba's approach. “The core of who we are is ultimate appreciators of music, artists and the medium. This isn't something that's being tossed out there without thought, respect or regard for people's works. That is the goal, a push to get this stuff recognized,” he says.
Amoeba spent an astounding six years and made an estimated $11 million investment in Vinyl Vaults before going online in 2012.
Professor Post thinks this might be a calculated move on their part. “They should have legal preparedness and I'm sure they know this is coming,” he says.
If challenged in court, Amoeba has a decent shot at walking away unscathed. Copyright laws give judges in cases like this an enormous amount of discretion. If Amoeba instantly removes the unlicensed mp3s when requested by the copyright holder, as the store claims it will, and turns over all the escrow profits, a judge could possibly see this as a public service and not award much in damages, or even none at all.
There's no doubt that the Vinyl Vaults could serve as a musical ark or sorts. Attempting to archive rarely-heard records for generations to come could be a truly noble endeavor by a much-heralded music store. Let's just hope it's legal.