Record Companies Sue over Mixtapes for Prison Inmates

Prison Music Infringement

Some of the biggest companies in the music industry, UMG, Capitol Records, Universal Music, Polygram, and Rondor, (collectively “UMG”) have banded together to bring a copyright infringement lawsuit to stop distribution of copyrighted song to prison inmates. Keefe Group and Centric Group sell “care packages” of various items that family members and friends can send to inmates who are incarcerated in correctional facilities. Many of these care packages include mixtapes, containing unauthorized copyrighted material. Keefe purchased the mixtapes from Ari’s Mixtapes, an online music retailer. UMG claims that Defendants gave away the music as a “loss leader,” enticing more buyers to their site where they could purchase more profitable items. UMG is asking for $150,000 per song in damages plus legal fees and costs.

The case sounds simple enough; a clear case of infringement, which seems to be the consensus on the new media and blogs. However, we are only getting on side of the story; the one based on UMG’s complaint filed with the California Court. The Defendants have not filed an answer yet. So what is really going on in this case? Can we read between the lines to discover how the Defendants might respond? If Defendants are infringers, are their actions worth $150,000 per song?

A Short Copyright Primer

Before we start analyzing the case details, let’s make sure everyone understands the basics of copyright. First, creative works receive copyright protection as soon as they are “fixed in a tangible medium,” like paper or a camera’s memory. Music, unlike visual arts, often have two copyrights, one for the recorded music, and one for the composition. When a composer writes a song for a singer or band, the composer maintains a copyright for the song, such as the words and musical arrangement, but the performer has a copyright in the recording.

Copyright holders have the exclusive right:

  1. to reproduce the copyrighted work in copies or phonorecords;
  2. to prepare derivative works based upon the copyrighted work;
  3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
  5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
  6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

These rights can be retained by the author or given away to other people or companies. In the music industry, performance and authorship rights are often given away to Record companies that help finance and promote the music. While technically, the copyrights are retained by the performers and composers, they often have no say in how their music is copied, distributed or performed. The music companies make those decisions and pay the musician’s royalties, although self-publishing through new Internet-based distribution channels is on the rise. In this case, the exclusive rights to the music at issue are held by the UMG, which can stop anyone from violating the exclusive rights mentioned above.mixtapes

Also, copyright is basically a strict liability law, or a “no fault” law, which means that an intent is not required. If a copyrighted work is legitimately purchased, but the seller had not right to sell the work, the purchaser would be an infringer if they were to violate any of the exclusive rights. The fact that the person had no idea that the work was stolen when they bought it is not a defense. However, I say, “basically” strict liability because infringers can avoid liability under certain conditions, such as if the use is a” fair use,” yet still be an infringer. Lastly, copyright registration with the U.S Copyright Office is not required, nor does a work require a copyright notice or name affixed to the work. The exclusive rights are the author’s regardless of registration. However, registration does provide certain benefits, including larger monetary awards in some cases and potential to have the legal fees, and courts costs paid for as well.

UMG Case analysis:

Before we start the analysis, understand that we are undertaking this task without all the information. We only have what is in the filed UMG Complaint, which attempts to provide the best story for UMG to make its case. The story will enhance the good facts and leave out the one that may be detrimental to their case. The story will be written so that the plaintiff look great and the defendant look guilty. We can read between the lines a bit but since we don’t have Keefe’s response, our analysis may be off the mark.

The question, we will try to answer, is whether the Keefe / Centric and Ari’s Mixtapes violate UMG’s exclusive rights and if so, what might the use as a defense?

UMG claims that Defendants have, without permission, reproduced, distributed, and prepared derivative works based on a substantial number of copyrighted songs owned by UMG, including recordings featuring James Brown, Eminem, Tupac Shakur, LL Cool J, Nas, and Mary J. Blige.

Let’s look at the Defendants separately. First, Ari’s Mixtapes music site is a very popular mixtape sites which has been around since January, 2006, according to the domain registration information. Mixtapes have a huge underground following. People make them and trade them like they were art. The music is often changed so much that the original songs are hardly recognizable. How much the music is changed on the Cd’s in the prison care packages is unknown but, if a copyrighted song is used without permission, it is a copyright infringement. The record companies haven’t shut Ari’s down yet, so how are they getting around the standard licensing agreement for selling music. Part of the answer is in Ari’s disclaimer on the website: does not sell bootlegged or unofficial materials of any kind. When you make a purchase from you agree that you are not purchasing the right to copy or redistribute any material that you purchase. All of the mixtape sales done by are solely for the CD covers and artwork. All of the media material used on these CDs was supplied directly to by various record labels and artists to be used by the DJ/Artist/Label solely for promotional use only. These CDs are provided to all customers of free with purchase of the covers and artwork. Thus, all mixtape sales conducted by are solely for the inserts and the media that constitute each mixtape, as media is solely for promotional use only as directed by the various labels and artists.

In some cases, record companies distribute promotional only copies of songs, which are given to people like DJs to play at various clubs. They are free to play, but cannot be sold. This is the workaround that Ari’s business runs under. Ari’s Mixtapes doesn’t sell music. They give away promotional versions of the music on a physical CD, which they buy and give away for free to the customer. What customers are buying is the Cover art and liner notes. Ari’s is only selling the artwork; how the purchaser of the artwork uses the songs is not Ari’s responsibility; they explain that they should be only used for promotional purposes, but they cannot police their customers after the product is sold.

Unfortunately, for Ari’s, that reasoning is based more on societal norms than the law. They are the same types of arguments used by Torrent sites; “we are just a directory. We don’t determine the content, and we can’t tell people what to do with it.” But courts have rejected that argument saying that torrent sites are providing a platform for infringement. Unlike the torrent sites which cut deeply into record company profits, underground mixtape sites like Ari’s don’t generate enough income to warrant a lawsuit, and in many cases. That doesn’t mean Ari is not an infringer though. Ari’s was likely tolerated by the recording industry but when Keefe’s, a major corporation, started using Ari’s Mixtapes for their own promotional purposes, a line was crossed that warranted action. As well, Keefe has deeper pockets, so there is more money to be gained.Mixed Tape infringement

Ari’s may have thought that the mixtapes fell under the fair use doctrine. Fair use is a difficult topic so if you want to know more, here is a fair use article to review. But in short, if the new work is transformative so that it is different enough from the original that it will have a new and different audience, then it may be fair use. That argument fails, however, because even if the work is a fair use, Ari’s is not the one who created it. They buy their mixtapes from others.

As for Keefe / Centric, It is difficult to tell from the Complaint, how much they knew. Was Keefe buying, what they thought were, legitimate mixtapes? Ari’s homepage claims that it has “The Widest Selection Of Official Mixtapes. . . 100% Official, No Bootlegs.” Certainly, even a short review of Ari’s website terms and condition would have alerted Keefe to the potential problems. As well, they may have thought that they were following Ari’s method by not charging for the music. However, Keefe’s was using them as a giveaway, a “loss leader,” to get the new client’s to buy other, more profitable goods the company sells. That tactic is less defensible. There is not enough information to speculate too much. However, UMG is going after Keefe (and Ari’s) for willful infringement, which is difficult to prove. The attorneys would not have gone down that road without a good argument to back it up.

Willful Infringement

Willful means “with intent,” knowing they were infringing. The general argument seems to be that that everyone knows that copying music is illegal. Ari claims to be an expert on music, so the companies must have some idea that they were doing something illegal. Even Ari’s disclaimer shows some level of intent.

Remember though, copyright infringement does not require intent; it is a strict liability law. So why does that matter here? If an intent can be proven in a case in which statutory damages are available, then the penalties are much higher.

Statutory damages are available if the copyright holder registers the work with the Copyright Office prior to discovery of the infringement, or within three months of publication. UMG and other large media companies generally register their music catalogs and so the companies can claim statutory damages. Under the Copyright Act, statutory damage awards range from $750-30,000 per infringement. On the other hand, willful infringement has a maximum penalty of $150,000 per infringement. Legal fees will also be awarded to the plaintiffs if they win. The potential for much higher penalties will put UMG in a better position when negotiating terms of a settlement.


Like most copyright infringement cases, the odds that this case will go to trial is very small. UMG will make their case, Defendants will make their counter arguments, and then the two will trade documents and battle for position. Once the discovery process is under way, depositions are being taken, and important documents are revealed, each side will know the strength of their positions. That’s when we can expect settlement talks to commence. Unfortunately, settlements are rarely public knowledge. Neither side wants anyone to know what they are willing to pay in case they are in another similar lawsuit. It might play out differently the next time. So we may never know the final results. For now, any ideas on how the case may differ from our analysis will depend on new factual details that may come in the Defendant’s answer.

If you have any comments or or just want to talk about mixtapes, please leave your comments below.

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at or on display at the Emmanuel Fremin Gallery in New York City.

Add Comment

Click here to post a comment

Your email address will not be published. Required fields are marked *

The Latest From Artrepreneur

  • Art Walks Put California on Parade

    For most Californians, walking yields to driving as the main mode of transportation. Driving is such a driving force for the state’s residents that “Saturday Night Live” created a recurring sketch about soap opera characters […]

  • The Future is Bright, Say Art Entrepreneurs

    According to a new report by the Strategic National Arts Alumni Project (SNAAP) the old adage of the struggling artist may officially be a myth. SNAAP’s special report, “Career Skills and Entrepreneurship Training for […]

  • Artist Profile: Natalia Nakazawa — Art, Work, and Life

    Natalia Nakazawa is a visual artist who works in mixed media to create paintings, tapestries, and collages. Her latest installation was displayed in a window of the iconic art deco Clocktower Building in Brooklyn’s DUMBO neighborhood. The […]

  • Art Business Conferences for the Art Entrepreneur

    Are you on your way to becoming a thriving art entrepreneur? Check out these upcoming art business conferences to increase your chances for success! The post Art Business Conferences for the Art Entrepreneur appeared first on Artrepreneur. […]

  • Eight Artist in Residence Programs to Launch Your Career

    We’ve previously reviewed how important it is to craft a bio and resume that details your art career, and today we’ll discuss one essential element that’s sure to make your career stand out: the Artist in Residence. Artist in […]

  • Write an Artist Bio to Get Noticed

    Most artists are used to expressing themselves in creative ways, but fewer understand the importance of expressing who they are in words. In this article, we'll review the creating an artist bio while offering some useful tips on its content. The […]

  • Balancing a Full-Time Job with Fulfilling Creativity

    Need more time in your day to work on creative endeavors? Here are few ideas that may help. The post Balancing a Full-Time Job with Fulfilling Creativity appeared first on Artrepreneur. […]

  • Launching an Art Startup? These Online Resources Can Help.

    Launching your own art startup can be scary. Here are a few tips and online resources that may help. The post Launching an Art Startup? These Online Resources Can Help. appeared first on Artrepreneur. […]

  • Expanding Your Art Business Beyond You [Part 2]

    Are you ready to expand your art business? Here's what you need to know about hiring and terminating employees, employee retirement plans and vacation and sick leave. The post Expanding Your Art Business Beyond You [Part 2] appeared first on […]

  • You Don’t Have to be an Artist to Work with Art

    Just because you don’t possess any artistic abilities – or just because you haven’t made it as an artist yet – doesn’t mean you can’t have a creative, art-filled career. There are plenty of “art […]

  • Expanding Your Art Business Beyond You

    Artists successfully running their own art business may be ready to hire an employee. We've covered everything you need to know, from tax requirements to insurance obligations. The post Expanding Your Art Business Beyond You appeared first on […]

  • What Photographers Need to Know About Shooting People [with Cameras]

    In this article, we'll review a key example of publicity and privacy issues, and what you need to know to keep your photography in the clear. The post What Photographers Need to Know About Shooting People [with Cameras] appeared first on […]

  • Getting What You Want: Basic Negotiation Tips For Creatives

    Selling and negotiating can be very intimidating. Fear not! Here are some common sense tips to negotiation that can help you get what you want. The post Getting What You Want: Basic Negotiation Tips For Creatives appeared first on Artrepreneur. […]

  • How to Sell Art [Without Being Annoying]

    Most artists will tell you that the hardest part of their job is trying to sell their artwork to the masses. Sure, they love the creativity and the freedom being an artist provides, but how can they make a living unless they sell their work? While […]

  • Museums Deck the Halls with Holiday Cheer for All

    Check out seasonal exhibits from some of the country’s top art museums. The post Museums Deck the Halls with Holiday Cheer for All appeared first on Artrepreneur. […]

  • Why Galleries Should Get Down with Art Fairs [A Useful Guide]

    As we're winding down from celebrating Art Basel Miami Beach, we're thinking about all the different ways galleries and artists can benefit from participating in these international art fairs. The post Why Galleries Should Get Down with Art Fairs [A […]

  • Your All Access Pass to Art Basel

    Dying to tackle Art Basel Miami Beach, but not sure where to start? You won't want to miss these stunning displays of the best of contemporary art. The post Your All Access Pass to Art Basel appeared first on Artrepreneur. […]

  • Get Your Networking on at Miami Art Week

    Miami Art Week is the perfect time for artists to network and gather contacts to keep building an art business. Check out five events primed to bring new opportunities. The post Get Your Networking on at Miami Art Week appeared first on Artrepreneur. […]

  • The Garment District: From Buttons and Bows to a Home for Art

    The Garment District Alliance has worked hard to evolve the area from a faded industrial center to a revitalized business district committed to bringing art to the streets. The post The Garment District: From Buttons and Bows to a Home for Art […]

  • United States of the Art: Six Destinations for the Great American Road Trip

    A cross-country road trip provides plenty of opportunities to create art. The post United States of the Art: Six Destinations for the Great American Road Trip appeared first on Artrepreneur. […]

  • How Does a Photography Business Make Money?

    Photographers are uniquely positioned within the art world to earn money through various revenue streams. Here's how you find work. The post How Does a Photography Business Make Money? appeared first on Artrepreneur. […]

  • The Basics of Insurance Part II: Health Insurance for Artists

    In this article, we’ll a type of insurance that you’ll want to think about as you build your art business – health insurance for artists. The post The Basics of Insurance Part II: Health Insurance for Artists appeared first on […]

  • The Emergence of the Creative Entrepreneur

    The term “starving artist” has long been part of our lexicon, signifying the significant struggle artists face bringing their creative work to market. For the lucky few that survive until they have paid their dues, the career can be […]

  • Seth Godin and Marketing for the Art World

    A good marketing strategy can help grow a business if done well. Let Seth Godin show you how to be a modern marketer in his skillshare video series. The post Seth Godin and Marketing for the Art World appeared first on Artrepreneur. […]

  • These Five Companies Put the Art in Startup

    Technology and art are intersecting in more ways than ever, and today’s art startups are revolutionizing the way art is consumed and collected. Entrepreneurs have been intersecting art and technology since the start of the .com boom. Portfolio […]

  • The Art Museum In The Digital Age

    I talked with Steve Konick, Director of Public Relations and Marketing for the Currier Museum of Art, in Manchester, New Hampshire, to understand why art museums are still relevant The post The Art Museum In The Digital Age appeared first on […]

  • Should I Open a Corporation for My Art Business?

    About 375,000 visual artists claim to be self-employed yet many don't realize that their personal assets can be at risk. Find out how opening a corporation can help protect you. The post Should I Open a Corporation for My Art Business? appeared […]

  • Model Citizens and Protected Images: Work-for-Hire and Right of Publicity

    Last week, we discussed model releases, and an example concerning a model whose image was being used by a company in a more liberal manner than what had originally been agreed upon by the model and the company. You may recall that in this instance, […]

  • Does Copyright and Trademark Law Protect 3D Printing?

    3D printing is a relatively new art form is sweeping the internet and worrying designers and Hollywood executives alike. Along with the advent of 3D printing, a steady stream of piracy and copyright infringement cases have been reported by industry […]

  • Consider this tip before signing an International Art Contract

    Most art galleries participate in art fairs throughout the year. Many of those fairs are international, such as Art Basel Switzerland or the Hong International Art Fair. International art fairs are an excellent way to position your gallery in […]

  • Six Steps to Safer Image Sharing

    Despite the unfortunate reality that image sharing on the Internet can lead to misappropriation of your work, there are some steps that can minimize the risks. The post Six Steps to Safer Image Sharing appeared first on Artrepreneur. […]

  • Does Freedom of Speech Protect Taking Photos of People Through Windows?

    Fine art Photographer Arne Svenson spent a year secretly taking photos of the Fosters, a family living across the street from his home. Does the Foster's Right to Privacy outweigh Svenson's Freedom of Expression? The post Does Freedom of Speech […]

  • Four Reasons Artists Should Hire Lawyers

    Think artists can't afford to hire lawyers? Actually, artists can't afford to not have one by their side. Here's four reasons why. The post Four Reasons Artists Should Hire Lawyers appeared first on Artrepreneur. […]

  • Death and Taxes: Save Millions Through Careful Estate Planning

    Artists and collectors can minimize estate taxes on artworks by employing a planning strategy and understanding the complexities involved with assessing the work's fair market value. The post Death and Taxes: Save Millions Through Careful Estate […]

  • Can You Spot a Fake? The Trouble with Authenticating Art

    What are the challenges for collectors in authenticating artworks? What are the legal remedies when a purchased artwork is discovered to be a forgery? The post Can You Spot a Fake? The Trouble with Authenticating Art appeared first on Artrepreneur. […]