Here’s an interesting story in music/legal news: Some rock acts have sued an entrepreneur for selling memorabilia. He obtained the items from promoter Bill Graham’s archives.

From the story:

“Sagan purchased the vintage items from Clear Channel Entertainment in 2003 and soon thereafter launched the Wolfgang’s Vault site. The site also streams music from soundboard recordings of Graham-presented shows from the 1960s through the late ’80s.”

The bands are Carlos Santana, The Doors, Led Zeppelin and the Grateful Dead.

I’m no lawyer, but I’d say the latter issue — streaming music — is most definitely a copyright violation (unless Sagan also bought rights from Clear Channel/the copyright owners). There are two types of copyright pertinent here, performance and composition.

Performance is, like it sounds, a specific playing of a piece; even if I didn’t write “Canon in D,” if I record myself playing it, you can’t use that recording without permission. Sagan, judging by the story, seems to own the performance — the soundboard recording.

But composition is also protected. If the copyright for “Canon in D” wasn’t expired, I could be sued by Pachelbel’s estate. So Sagan probably has no right to stream the songs for all to hear.

The plaintiffs could also see some success about the man selling replications of memorabilia. Even if he owns the original promotional item, the bands own the associated trademarks and copyrights. An analogy: If I buy a limited edition CD, I can sell it, but I can’t make copies.

But again, I can sell it — that’s why I’m a little more skeptical about the plaintiffs’ objection to selling original memorabilia. If Clear Channel had legitimate possession of the memorabilia, and sold the items to him, one would think he could do with the items as he pleased.

One legal avenue they might have is misappropriation, which is using “the name, portrait, picture or sound of any living person for advertising purposes, or for the purposes of trade, without first having obtained the written consent of such person.” This would indicate he’s free to sell the items, but he can’t use the surviving band members’ images to do it. Using the bands’ names in ads might also violate trademark laws.

It’ll be interesting to see how it pans out. There are a few previous cases that show how uncertain the decision is.

The owners of Hollywood Rose’s recordings (HR is Axl Rose’s pre-Guns N’ Roses band) were able to call the CD “The roots of Guns N’ Roses.” Court decision here. They argued their only alternative was something like “The Roots of the Popular Rock Band on Geffen Records that Sold Millions of Albums and Sang the Hit Song ‘Welcome to the Jungle.’”

This case, however, hinged on the fact that the words “Guns N’ Roses” were a reference to the band Guns N’ Roses for comparative purposes — the record wasn’t being sold as a Guns N’ Roses record, or with the implication that the band had approved it.

Also, early Marilyn Manson material had to come out under The Spooky Kids, with no reference to the singer (the band was originally called Marilyn Manson and the Spooky Kids). Even images that looked like Manson were removed.

Robert VerBruggen blogs at http://www.therationale.com and http://robertsrationale.blogspot.com.

UPDATE: The Los Angeles Times has a more reasonable explanation for why original memorabilia sales might be illegal in this case:

“Sagan simply doesn’t have the legal rights to exploit and profit from the extraordinary success of these musicians,” said attorney Jeff Reeves, who represents the musicians and works in the Irvine offices of Los Angeles law firm Gibson, Dunn & Crutcher. “This memorabilia was created in the first place for the purposes of promoting concerts and as gifts for fans and concert crew. Graham himself did not have the right to sell, reproduce or otherwise exploit these materials as a promoter, and neither does Sagan, who was not authorized to purchase these materials and who has absolutely no connection to the artists or their music.”

And a hilarious quote from a Doors member:

“That’s how artists make money, and it’s OK for artists to make money and they should make money when people are selling their name and their image,” Manzarek said. “If people are buying something because it says the Doors on it then, you know, you should give the Doors some of the money. Look, I need to pay my electric bill. I play an electric keyboard.”

The thing is, though, once the Doors sell something and take a cut, people don’t owe them another cut for re-selling it.