Use a Mic—Go To Jail?

Use a Mic—Go To Jail?

Last week’s column provoked a number of interesting responses and yielded some good information about alternative miking techniques. Along the way, I got an email from an occasional correspondent who is a lawyer and also a new music aficionado. He offered the following caution:

I read your article on recording on the streets. Surreptitious recording can under some circumstances be a criminal offense. For example, California Penal Code section 632 makes surreptitious recording of confidential conversations illegal. Other states have other laws. Don’t record telephone conversations in California without giving notice to the other parties.

And then he kindly provided the full statute.

For the record, I don’t think anyone was advocating the surreptitious recording of confidential conversations, but it looks like there might be issues of inadvertent liability if you are trying to be particularly discrete when recording out in an urban setting and keeping your equipment under wraps.

Please remember, the above is in reference to California law, and your municipality’s rules may be different. (Note to self: check the statutes in Tokyo before heading out with a pair of in-ear binaural microphones and my latest toy. I’d hate to end up in a Japanese hoosegow like Paul McCartney.)

Anyway, I got to wondering. Does anyone know of any music composition that itself somehow lead to a civil liability on the part of the composer outside of issues of intellectual property, copyright, etc.? I can’t think of any off hand, but my curiosity has been piqued, and so if there are any cases out there that you know about, it would be of interest. If you have an example, please post in comments.

Legality aside, what about the moral questions of rolling a mic somewhere out in public and recording, for possible use in a composition, all of the sounds therein, including conversations? Same as taking a photo in a public space? Different? Composer Robin Rimbaud , a.k.a. Scanner, made a series of pieces in the late 1990s by scanning the public airwarves for people’s cell phone conversations, and then using them as material in performance and on recordings. That certainly raised a lot of immediate and direct questions about privacy, surveillance, and ethics in art, to which Rimbaud held his own against his critics pretty well. What’s your opinion about all of it? As always, I’d love to hear your thoughts.

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8 thoughts on “Use a Mic—Go To Jail?

  1. David

    Sorry Carl, but I have no answers or comments about the actual questions in your interesting article.

    However… I’ve had an H4 for about a year – I love almost everything about it except the little tiny screen and the crazy control interface. People think it’s a Taser. I tell them it’s a StarTrek Tri-corder.

    Anyway, can you tell me what “in-ear binaural microphones” you use. Are you happy with the combination?


  2. vinsterrific

    There should be no impediment to freely use recorded conversation as long as the conversation recorded does not lead to some sort of incrimination of those persons recorded.

    Yes, the Law hates gving so-called “bright-line” rules for deciding what’s permissable and what isn’t – ambiguity in the Law gives lawyers and judges something to do – but, what harm could be done to anyone if say one were to use the word “coffee” taken out of context from any conversation in a “sound piece”?

    On the other hand, the sound of someone in conversation saying, “I hate my wife…” might be a problem.

    Still, would the recordist have to keep log of who they recorded and where and when they were recorded, in the event some sound snippet should become evidence in a civil or criminal trial?

    The Brian DePalma movie “Blowout” with John Travolta, outlines what might happen to casually recorded sounds during an extremely criminal and coincidental event.

  3. carlstone

    Hmm, never saw that, will have to check it out. It sounds like it must be an hommage to the 1966 Antionioni film Blow-Up, which applied the same idea using a photograph taken in a public place.

    vinsterrific – playing devil’s advocate here, maybe using one word may be harmless to the privacy of the person recorded, how about a full sentence? What do you see as the boundries, if any?

    david, I am currently testing the miniature binaural microphones marketed by a company called Sound Professionals, the SP-TFB-2s. This is NOT an endorsement, I just started to try them out and haven’t formed any judgement yet.

    Apropos of using conversation as material in a piece (albeit not surreptitiously), I love the piece “Lunching Laughing Learning” , by the felicitously named Trio Cutty Sark, really just a project of the artist Wilken Schade, released on a CD compliation called Vibro 1 a couple of years ago. Here’s a pointer to the label’s page about Trio Cutty Sark, along with full disclosure: Vibro recently released a piece of mine on their latest compilation, Vibro 4.

  4. Herb Levy

    Hi Carl,

    With all this writing about mic usage and field recordings in Japan, maybe it’s time for you to create a new work which, like Kuk Il Kwan, uses sounds from every city in which it’s been performed.

    With your growth as a composer over the last twenty years or so and the changes in the technology available, it would be interesting to hear what you’d end up doing.

  5. dalgas

    Related news: Seattle phonographer Chris DeLaurenti just passed along a link to something the U.S. Interior Dept. is planning, that could restrict not only recording audio and video on public lands for journalists, but concievably for any artist as well. The deadline for public comment is today (!). The link is here:

    I’ll quote part of it below, but you can see how this could apply to the gathering of field recordings:

    The proposal would decide several key issues in ways that restrict journalists:

    Is documentary a form of news? The proposal allows agencies to say “no.”

    Are freelancers representatives of the news media? Agencies can say “no.”

    Are independent producers and production companies news media? Again: “no.”

    Can public radio reporters interview park staff or record wolf calls? The rule allows parks to require a permit, even though the law gives it no authority to do so.

    Do still photographers with handheld cameras need permits? The rule allows a park service employee to deny permission to photograph if he/she feels the photography is “inappropriate.”

    While Interior’s proposal continues the agency’s current policy of exempting “news coverage” from permit requirements, it also allows a very narrow definition of “news.” Current policy exempts only “breaking” or “spot” news (such as a wildfire or presidential photo-ops) from permit requirements. One park (Yellowstone) defines news as “an event that cannot be covered at any other time or location.” That could exclude coverage of grizzly bear conflicts, snowmobile policy decisions, bioprospecting, budget and maintenance debates, and traffic jams.

  6. vinsterrific

    vinsterrific – playing devil’s advocate here, maybe using one word may be harmless to the privacy of the person recorded, how about a full sentence? What do you see as the boundries, if any? –

    Boundaries are the problem. No such thing can be mandated. It’s like creating a “number of bars” rule for borrowing from a pre-existing copyright-protected work – it’s all relative. The first four notes of Beethoven’s Fifth are unmistakable.

    It’s one of those problems that are better left ambiguous and open-ended, to avoid putting the power to decide the boundaries in the hands of the user.

    Better to get a signed release from those who have been recorded.

    Otherwise, I’m sure there’d be lawsuits and court orders concocted over the one person who records, “Rosebud…”


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