540.11 Unauthorized copying of phonograph records, disk, wire, tape, film, or other article on which sounds are recorded.—
(1) As used in this section, unless the context otherwise requires:
(a) “Owner” means the person who owns the original sounds embodied in the master phonograph record, master disk, master tape, master film, or other device used for reproducing sounds on phonograph records, disks, tapes, films, or other articles upon which sound is recorded, and from which the transferred recorded sounds are directly or indirectly derived, or the person who owns the rights to record or authorize the recording of a live performance.
(b) “Performer” means the person or persons appearing in the performance.
(c) “Master recording” means the original fixation of sounds upon an article from which copies can be made.
(d) “Person” means any individual, partnership, corporation, association, or other legal entity.
(e) “Article” means the tangible medium upon which sounds or images are recorded or any original phonograph record, disk, tape, audio or video cassette, wire, film, or other medium now known or later developed on which sounds or images are or can be recorded or otherwise stored, or any copy or reproduction which duplicates, in whole or in part, the original.
(2)(a) It is unlawful:
1. Knowingly and willfully and without the consent of the owner, to transfer or cause to be transferred, directly or indirectly, any sounds recorded on a phonograph record, disk, wire, tape, film, or other article on which sounds are recorded, with the intent to sell, or cause to be sold, or use or cause to be used for profit through public performance, such article on which sounds are so transferred without consent of the owner.
2. Knowingly to manufacture, distribute, wholesale or transport within the state or cause to be transported within the state for commercial advantage or private financial gain any article on which sounds are recorded with knowledge that the sounds thereon are transferred without consent of the owner.
3. Knowingly and willfully and without the consent of the performer, to transfer to or cause to be transferred to any phonograph record, disk, wire, tape, film, or other article any performance, whether live before an audience or transmitted by wire or through the air by radio or television, with the intent to sell, or cause to be sold, or to use or cause to be used for profit through public performance or to be used to promote the sale of any product or such article onto which such performance is so transferred.
4. Knowingly to manufacture, distribute, wholesale or transport within this state or cause to be transported within this state for commercial advantage or private financial gain any article embodying a performance, whether live before an audience or transmitted by wire or through the air by radio or television, recorded with the knowledge that the performance is so transferred without consent of the owner.
Subparagraphs 1. and 2. apply only to sound recordings fixed prior to February 15, 1972.
(b)1. A person who violates paragraph (a) commits a felony of the third degree, punishable as provided in s. 775.082, by a fine of up to $250,000, or both if the offense involves at least 1,000 unauthorized articles embodying sound or at least 65 unauthorized audiovisual articles during any 180-day period or is a second or subsequent conviction under either this subparagraph or subparagraph 2.
2. A person who violates paragraph (a) commits a felony of the third degree, punishable as provided in s. 775.082, by a fine of up to $150,000, or both if the offense involves more than 100 but less than 1,000 unauthorized articles embodying sound or more than 7 but less than 65 unauthorized audiovisual articles during any 180-day period.
3. A person who otherwise violates paragraph (a) commits a misdemeanor of the first degree, punishable as provided in s. 775.082, by a fine of up to $25,000, or both.
(c) For purposes of this subsection, a person who is authorized to maintain custody and control over business records which reflect whether or not the owner of the live performance consented to having the live performance recorded or fixed shall be a proper witness in any proceeding regarding the issue of consent.
(3)(a) It is unlawful:
1. To sell or offer for sale or resale, advertise, cause the sale or resale of, rent, transport or cause to be rented or transported, or possess for any of these purposes any article with the knowledge, or with reasonable grounds to know, that the sounds thereon have been transferred without the consent of the owner.
2. To sell or offer for sale or resale, advertise, cause the sale or resale of, rent, transport or cause to be rented or transported, or possess for any of these purposes any article embodying any performance, whether live before an audience or transmitted by wire or through the air by radio or television, recorded without the consent of the performer.
3. Knowingly, for commercial advantage or private financial gain to sell or resell, offer for sale or resale, advertise, cause the sale or resale of, rent, transport or cause to be rented or transported, or possess for such purposes, any phonograph record, disk, wire, tape, film, or other article on which sounds are recorded, unless the outside cover, box, or jacket clearly and conspicuously discloses the actual name and address of the manufacturer thereof, and the name of the actual performer or group.
(b)1. A person who violates paragraph (a) commits a felony of the third degree, punishable as provided in s. 775.082, by a fine of up to $250,000, or both if the offense involves at least 1,000 unauthorized articles embodying sound or at least 65 unauthorized audiovisual articles during any 180-day period or is a second or subsequent conviction under either this subparagraph or subparagraph 2. of this subsection.
2. A person who violates paragraph (a) commits a felony of the third degree, punishable as provided in s. 775.082, by a fine of up to $150,000, or both if the offense involves more than 100 but less than 1,000 unauthorized articles embodying sound or more than 7 but less than 65 unauthorized audiovisual articles during any 180-day period.
3. A person who otherwise violates this subsection commits a misdemeanor of the first degree, punishable as provided in s. 775.082, by a fine of up to $25,000, or both.
(4) Any recorded article produced in violation of subsections (2) and (3), or any equipment or components used in the production thereof, shall be subject to seizure and forfeiture and destruction by the seizing law enforcement agency.
(5) This section shall neither enlarge nor diminish the right of parties in private litigation.
(6) This section does not apply:
(a) To any broadcaster who, in connection with, or as part of, a radio, television, or cable broadcast transmission, or for the purpose of archival preservation, transfers any such sounds recorded on a sound recording.
(b) To any person who transfers such sounds in the home for personal use and without compensation for such transfer.
(c) To any not-for-profit educational institution or any federal or state governmental entity, if all the following conditions exist:
1. The primary purpose of the institution or entity is the advancement of the public’s knowledge and the dissemination of information.
2. Such purpose is clearly set forth in the institution’s or entity’s charter, bylaws, certificate of incorporation, or similar document.
3. Prior to the transfer of the sounds, the institution or entity has made a good faith effort to identify and locate the owner or owners of the articles to be transferred.
4. Despite good faith efforts, the owner or owners have not been located.
...336 (codified at scattered sections of 17 U.S.C.) (granting public performance rights for digital
transmission of sound recordings).
5
There were and still are, however, numerous examples of statutory protection for live musical
performances at the state level. See, e.g., Fla. Stat. § 540.11(2)(a)(3).
3
(2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical
performance; or
(3) distributes or offers to distri...
... Case: 15-13100 Date Filed: 06/29/2016 Page: 14 of 19
copyright constituent right of exclusive reproduction. Moreover, some support for
that proposition might be provided by the fact that Florida’s record piracy statute,
FLA. STAT. § 540.11, criminalizes the reproduction of a sound recording with intent
to sell or use same for profit through public performance....
...the term “copy” in the relevant provision of the Federal Copyright Act. It is not
clear to us whether the same result would be reached under Florida common law
copyright. We observe that Florida’s criminal record piracy statute, FLA. STAT. §
540.11, does not contain language parallel to the Federal Copyright Act’s
requirement that an infringing “copy” be “sufficiently permanent or stable to
permit it to be perceived, reproduced, or otherwise communicated for a period of
more than transitory duration.” Compare FLA. STAT. § 540.11(2)(a) with 17
U.S.C....
Cited 1 times | Published | Florida 1st District Court of Appeal | 2005 WL 1711637
...the verdict be reinstated. Upon arriving at the scene of a retail establishment, Ling Dynasty Apparel, in response to a reported burglary, investigating officers noticed a display case with CDs for sale that looked homemade, which is made illegal by section 540.11(3)(a)1, Florida Statutes (2002)....
...7 F.3d at 1023-24; see also id. at 1023
n.5. The Eleventh Circuit also noted as potentially relevant the fact that Florida
has a criminal record piracy statute and that the statute contains an exception for
radio broadcasters. Id. at 1024 (citing § 540.11, Fla....
...id the
New York Court of Appeals when it recently answered a similar question certified
by the Second Circuit in a suit brought by Flo & Eddie against Sirius in federal
13. The Legislature subsequently moved the record piracy statute to section
540.11, Florida Statutes—chapter 540, Florida Statutes, generally addresses
commercial discrimination and unfair competition....
... to, among other things, ignore the fact that for the past four decades, Florida’s
record piracy statute—albeit a criminal one—has contained a specific exception
for copies made “in connection with, or as part of” radio broadcast transmissions.
See § 540.11(6)(a), Fla....
...3d DCA 2008) (“To establish a claim for civil theft, a party must prove that a
conversion has taken place and that the accused party acted with criminal intent.”).
Again, Florida has a criminal record piracy statute that expressly excepts copies
made “in connection with, or as part of” radio broadcast transmissions.
§ 540.11(6)(a), Fla....
Published | Court of Appeals for the Eleventh Circuit
...336 (codified at scattered
sections of 17 U.S.C.) (granting public performance rights for digital transmission of sound
recordings).
5
There were and still are, however, numerous examples of statutory protection for live
musical performances at the state level. See, e.g., Fla. Stat. § 540.11(2)(a)(3).
4
108 Stat....
