TITLE 16
CRIMES AND OFFENSES
ARTICLE 3
CRIMINAL REPRODUCTION AND SALE OF RECORDED MATERIAL
16-8-60. Reproduction of recorded material; transfer, sale, distribution, circulation; civil forfeiture; restitution.
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It is unlawful for any person, firm, partnership, corporation, or association knowingly to:
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Transfer or cause to be transferred any sounds or visual images recorded on a phonograph record, disc, wire, tape, videotape, film, or other article on which sounds or visual images are recorded onto any other phonograph record, disc, wire, tape, videotape, film, or article without the consent of the person who owns the master phonograph record, master disc, master tape, master videotape, master film, or other device or article from which the sounds or visual images are derived; or
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Sell; distribute; circulate; offer for sale, distribution, or circulation; possess for the purpose of sale, distribution, or circulation; cause to be sold, distributed, or circulated; cause to be offered for sale, distribution, or circulation; or cause to be possessed for sale, distribution, or circulation any article or device on which sounds or visual images have been transferred, knowing it to have been made without the consent of the person who owns the master phonograph record, master disc, master tape, master videotape, master film, or other device or article from which the sounds or visual images are derived.
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It is unlawful for any person, firm, partnership, corporation, or association to sell; distribute; circulate; offer for sale, distribution, or circulation; or possess for the purposes of sale, distribution, or circulation any phonograph record, disc, wire, tape, videotape, film, or other article on which sounds or visual images have been transferred unless such phonograph record, disc, wire, tape, videotape, film, or other article bears the actual name and address of the transferor of the sounds or visual images in a prominent place on its outside face or package.
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This Code section shall not apply to any person who transfers or causes to be transferred any such sounds or visual images:
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Intended for or in connection with radio or television broadcast transmission or related uses;
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For archival purposes; or
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Solely for the personal use of the person transferring or causing the transfer and without any profit being derived by the person from the transfer.
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Every person convicted of violating this Code section shall be guilty of a felony and shall be punished as follows:
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Upon the first conviction of violating this Code section, by a fine of not less than $500.00 nor more than $25,000.00, by imprisonment for not less than one year nor more than two years, or both such fine and imprisonment;
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Upon the second conviction of violating this Code section, by a fine of not less than $1,000.00 nor more than $100,000.00, by imprisonment for not less than one year nor more than three years and the judge may suspend, stay, or probate all but 48 hours of any term of imprisonment, or both such fine and imprisonment; or
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Upon the third or subsequent conviction of violating this Code section, by a fine of not less than $2,000.00 nor more than $250,000.00, by imprisonment for not less than two nor more than five years and the judge may suspend, stay, or probate all but six days of any term of imprisonment, or both such fine and imprisonment.
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This Code section shall neither enlarge nor diminish the right of parties to enter into a private contract.
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Any phonograph record, disc, wire, tape, videotape, film, or other article onto which sounds or visual images have been transferred in violation of this Code section are declared to be contraband and no person shall have a property right in them; provided, however, that notwithstanding paragraph (2) of subsection (a) of Code Section 9-16-17, no property of any owner shall be forfeited under this paragraph, to the extent of the interest of such owner, by reason of an act or omission established by such owner to have been committed or omitted without knowledge or consent of such owner.
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Any property subject to forfeiture pursuant to paragraph (1) of this subsection shall be forfeited in accordance with the procedures set forth in Chapter 16 of Title 9.
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For purposes of imposing restitution pursuant to Chapter 14 of Title 17 when a person is convicted pursuant to this Code section, the court shall consider damages to any owner or lawful producer of a master phonograph record, master disc, master tape, master videotape, master film, or other device or article from which sounds or visual images are derived. Restitution shall be based upon the aggregate wholesale value of lawfully manufactured and authorized recorded devices corresponding to the nonconforming recorded devices involved in the violation of this Code section and shall also include reasonable investigative costs related to the detection of the violation of this Code section.
(Ga. L. 1975, p. 44, § 1; Ga. L. 1978, p. 1938, § 1; Ga. L. 1986, p. 652, § 1; Ga. L. 1988, p. 13, § 16; Ga. L. 2008, p. 240, § 1/SB 406; Ga. L. 2015, p. 693, § 2-7/HB 233.)
Cross references.
- Deceptive or unfair trade or consumer practices generally,
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10-1-370 et seq.
Criminal penalty for obtaining telephone, telegraph, or cable television service by means of schemes, devices, etc., which avoid payment of lawful charges for such service,
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46-5-2 et seq.
Editor's notes.
- Ga. L. 2015, p. 693,
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4-1/HB 233, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date.
Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."
Law reviews.
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For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015).
For note, "(Don't) Give It Up Or Turn It Loose:
State Law Copyright Protection of Pre-1972 Sound Recordings in Blank Slate Jurisdictions Like Georgia," see 49 Ga. L. Rev. 819 (2015).
JUDICIAL DECISIONS
Constitutionality.
- Trial court did not err in finding that O.C.G.A.
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16-8-60(b) was not unconstitutionally vague nor overbroad and was not preempted by federal law, as: (1) the statute aimed to protect the public and entertainment industry from piracy and bootlegging, a legitimate governmental interest unrelated to free speech concerns; (2) the statute did not impinge upon pure speech, but, at most, regulated a combination of commercial conduct and speech; (3) the statute's deterrent effect on legitimate expression was minimal; and (4) the statute plainly prohibited the sale or possession for the purposes of sale of an article that did not prominently display the name and address of the individual (or entity) who transferred the sounds to the article; moreover, there was no federal preemption as the statute contained an extra element, specifically, labeling, which qualitatively distinguished it from federal copyright law. Briggs v. State, 281 Ga. 329, 638 S.E.2d 292 (2006).
Conviction not time-barred.
- Conviction for criminal reproduction of recorded material in violation of O.C.G.A.
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16-8-60(b) was not time-barred under O.C.G.A.
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17-3-1(c); the defendant was observed committing the crime on May 22, 2004, when illegally recorded material was found in the defendant's car, and a superseding indictment was issued on February 7, 2006. Hayward-El v. State, 284 Ga. App. 125, 643 S.E.2d 242 (2007).
Multiple charges.
- Because defendant's argument on appeal was a challenge to defendant's convictions for making 91 unauthorized offers to sell recorded material under O.C.G.A.
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16-8-60(b), and because an O.C.G.A.
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16-1-7(a) motion to correct or modify an illegal sentence was not an appropriate remedy to attack a conviction in a criminal case, defendant did not properly challenge the convictions; defendant's only recourse was through habeas corpus proceedings. Rogers v. State, 314 Ga. App. 398, 724 S.E.2d 417 (2012).
Exemption applied.
- Exemption to O.C.G.A.
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16-8-60, set forth in
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16-8-60(c)(l), applies such that Internet radio services of the type offered by the operator were exempt from application of
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16-8-60 because there was no significant difference in either the user experience or the nature of the broadcast of sound recordings between terrestrial AM/FM and Internet transmissions of the type offered by the operator and, thus, the latter was a related use of the former. iHeartMedia, Inc. v. Sheridan, 300 Ga. 771, 798 S.E.2d 223 (2017).
