Did Tennessee accidentally legalize pirated movies and post-1972 music in 2009?

Plain-English summary

Memphis-area District Attorney William Gibbons asked whether the General Assembly had "inadvertently removed criminal penalties" for pirated recordings when it amended Tenn. Code Ann. § 39-14-139 in 2009. The new statute appeared to exclude prosecution of audiovisual works (movies) and sound recordings made on or after February 15, 1972.

AG Robert E. Cooper, Jr. answered that the carve-out was likely intentional, not accidental, because federal copyright law required it. Section 301 of the Copyright Act of 1976 (17 U.S.C. § 301) preempts state criminal prosecutions for unauthorized duplication of copyrighted works, with one specific exception: sound recordings "fixed" (created) before February 15, 1972. The 1976 federal statute didn't extend federal copyright protection to pre-1972 sound recordings, so states retain authority over them; everything else goes to federal court. Tennessee's amendment matches that federal line.

But "accidental decriminalization" was the wrong frame. Pirated movies and post-1972 music are still criminal, just under federal law (17 U.S.C. §§ 501 and 506), not Tennessee law. And several other Tennessee statutes still apply. Tenn. Code Ann. § 39-14-139(c) prohibits "bootleg" recordings (unauthorized recordings of live performances), which federal copyright doesn't preempt. Tenn. Code Ann. § 39-14-115 prohibits "counterfeit" recordings (recordings designed to look like the original commercial product, with original artwork, labels, and packaging) under the criminal simulation statute.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What's the difference between pirated, bootleg, and counterfeit?
A: The recording industry's distinctions: a pirate recording is unauthorized duplication of an existing commercial recording's sound (an unlicensed copy); a bootleg recording is an unauthorized recording of a live or broadcast performance that was never sold commercially (a concert recording made without permission); a counterfeit recording is a pirate that also copies the original artwork, label, packaging, and trademarks (designed to deceive buyers into thinking they're buying the legitimate product).

Q: Why does the 1972 date matter?
A: Federal copyright law was extended to cover sound recordings only as of February 15, 1972. Pre-1972 sound recordings were not under federal copyright. The Copyright Act of 1976's preemption clause (§ 301) generally preempts state copyright-like laws, but it expressly preserves state authority over pre-1972 sound recordings. So Tennessee can still prosecute pre-1972 sound recording piracy, but post-1972 piracy is federal-only.

Q: What about pirated movies?
A: Federal preemption covers them too. Movies have always been federal copyright subject matter, so state criminal prosecutions are preempted. Tennessee's § 39-14-139(b)(2) explicitly excludes audiovisual recordings from prosecution under (b)(1).

Q: Can Tennessee still prosecute bootleg concert recordings?
A: Yes. Section 39-14-139(c)(1) prohibits recording or fixing a "live performance" without the consent of the owner, plus selling or transporting such bootlegs for commercial advantage or private financial gain. The AG treated the bootleg statute as surviving federal preemption because it protects the performer's right to control recording of a live, never-commercially-released performance, an interest distinct from copyright in a fixed work.

Q: What's a "live performance"?
A: Per § 39-14-139(a)(3) (Supp. 2009), "a recitation, rendering or playing of a series of images, musical, spoken or other sounds, or a combination of images and sounds, in an audible sequence." That covers concerts, broadcast performances, and live readings.

Q: How does the criminal simulation statute apply?
A: Tenn. Code Ann. § 39-14-115(a)(1) targets fraud-by-counterfeiting more generally, anyone who, with intent to defraud, makes or alters an object so it appears to have value due to age, source, or authorship it lacks; possesses such an altered object with intent to sell; or authenticates such an object as genuine. A counterfeit CD with stolen artwork falls within this statute.

Q: What does federal law do about post-1972 piracy?
A: 17 U.S.C. §§ 501 and 506 provide both civil and criminal remedies for the unauthorized reproduction, distribution, rental, or digital transmission of copyrighted recordings. Federal prosecutors and right-holders, not Tennessee state DAs, are the primary enforcers.

Q: How did the opinion sort piracy cases by enforcement track?
A: The AG's 2010 framework mapped each category to a forum: pre-Feb 15, 1972 sound recordings fell under Tenn. Code Ann. § 39-14-139(b)(1) (state); movies and post-1972 music were preempted to federal enforcement; bootlegged live performances fell under § 39-14-139(c)(1) (state); and counterfeits with copied packaging or trademarks could be charged under § 39-14-115 criminal simulation (state). Because these statutes can be amended, anyone applying this today should confirm the current text first.

Background and statutory framework

The 2009 amendment to Tenn. Code Ann. § 39-14-139 looks at first like a major narrowing of state piracy enforcement, and it is. But the narrowing didn't come out of nowhere. Section 301 of the Copyright Act of 1976 expressly preempts state laws that grant rights "equivalent to any of the exclusive rights within the general scope of copyright" for works that come within the federal copyright subject matter. Multiple state supreme courts (the Illinois decision in People v. Williams (Ill. 2009) is the AG's lead citation) have held that § 301 reaches state criminal piracy prosecutions, not just civil claims, and Tennessee's amendment aligned the state statute with that federal limit.

The carve-out for pre-1972 sound recordings is § 301's own exception. Federal copyright didn't reach sound recordings until 1972, and Congress chose not to retroactively extend protection. Section 301 preserves state authority over pre-1972 recordings; Tennessee uses that authority through § 39-14-139(b)(1).

The bootleg statute (§ 39-14-139(c)) and the criminal simulation statute (§ 39-14-115) survive untouched because they aren't really "copyright equivalents." The bootleg statute targets unauthorized recording of performances that were never commercially released, the right at issue is the performer's right to control whether their live work gets recorded at all, which has historically been a state-law matter (right of publicity, common-law copyright in unfixed works). The criminal simulation statute targets fraud, the use of stolen packaging to deceive consumers, which is a state interest distinct from the copyright in the underlying recording.

The DA's "inadvertent" theory had practical force, the 2009 amendment was easy to read as a legislative oversight that left enforcers without tools. The AG's response was that the apparent oversight was actually federalism in action: Congress occupied the field of post-1972 sound and audiovisual recording piracy, and the General Assembly correctly retreated to its remaining areas of authority.

Citations and references

Federal law:
- 17 U.S.C. § 301 (copyright preemption)
- 17 U.S.C. §§ 501, 506 (federal copyright remedies)

State statutes (as of 2010):
- Tenn. Code Ann. § 39-14-139 (recording offenses)
- Tenn. Code Ann. § 39-14-115 (criminal simulation)

Cases:
- People v. Williams, 920 N.E.2d 446 (Ill. 2009) (Illinois Supreme Court): § 301 preempts state criminal prosecutions

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-082.pdf

Original opinion text

Pirated and Bootlegged Movies and Music

QUESTIONS

1. Under Tenn. Code Ann. § 39-14-139(b)(2) (Supp. 2009), is it unlawful to create or sell (a) pirated movies and (b) pirated music that was originally recorded after February 15, 1972?

2. Does Tenn. Code Ann. § 39-14-139 (Supp. 2009) decriminalize the creation and sale of bootleg movie and music recordings unless the copy was created to look like an original commercial recording?

OPINIONS

1. No. While Tenn. Code Ann. § 39-14-139(b)(1) (Supp. 2009) provides that it is unlawful to duplicate, transport, or sell any recording "for commercial advantage or private financial gain" without the consent of the owner, Tenn. Code Ann. § 39-14-139(b)(2) (Supp. 2009) specifically excludes "audiovisual recordings" from prosecution for violations of subsection (b)(1) of the statute. Furthermore, subsection (b)(1) "applies only to sound recordings that were initially fixed before February 15, 1972."

2. No. Bootleg movies and music recordings are unlawful under Tenn. Code Ann. § 39-14-139(c) (Supp. 2009), which prohibits the creation and sale of unauthorized recordings of live performances. Counterfeit media are unlawful under Tenn. Code Ann. § 39-14-115 (Supp. 2009).

ANALYSIS

In 2009, the legislature amended Tenn. Code Ann. § 39-14-115 by deleting the prohibition against the creation and sale of pirated recordings and adding it as an offense under Tenn. Crim. Ann. § 39-14-139. As amended, Tenn. Crim. Ann. § 39-14-139(b)(1) states:

It is unlawful for any person to:
(A) Knowingly reproduce for sale or cause to be transferred any recording with intent to sell it or cause it to be sold or use it or cause it to be used for commercial advantage or private financial gain through public performance without the consent of the owner;
(B) Transport within this state, for commercial advantage or private financial gain, a recording with the knowledge that the sounds on the recording have been reproduced or transferred without the consent of the owner; or
(C) Advertise, offer for sale, sell or rent, cause the sale, resale or rental of, or possess for one (1) or more of these purposes any recording that the person knows has been reproduced or transferred without the consent of the owner.

The amendment also added subsection (b)(2), which specifically excludes audiovisual recordings from prosecution for violations of subsection (b)(1) and states that (b)(1) "applies only to sound recordings that were initially fixed before February 15, 1972." Thus, a person may not be prosecuted under this statute for unauthorized duplication of sound recordings that were initially fixed on or after February 15, 1972, or any audiovisual recording.

In your letter, you expressed concern that the legislature had "inadvertently removed criminal penalties" for unauthorized duplication of recordings. While the amendment does exclude prosecution for audiovisual recordings and some sound recordings, the exclusion likely was not inadvertent. Section 301 of the Copyright Act of 1976 expressly preempts state criminal prosecutions for pirated media, except for sound recordings fixed before February 15, 1972. See People v. Williams, 920 N.E.2d 446, 457 (Ill. 2009) (citing decisions from several states agreeing that the preemption provisions of section 301 were intended to apply to state criminal prosecutions). The production of pirated movies and sound recordings may be prosecuted as copyright violations under federal law, which provides civil and criminal penalties for the unauthorized reproduction, distribution, rental, or digital transmission of copyrighted recordings under Title 17, United States Code, Sections 501 and 506.

The creation and sale of bootleg movies and music recordings may be prosecuted under Tenn. Code Ann. § 39-14-139(c)(1) (Supp. 2009). This subsection prohibits the recording or fixing of a "live performance" without the consent of the owner, as well as the sale, transport, or possession of such unauthorized recordings for "commercial advantage or private financial gain." A "live performance" is defined as "a recitation, rendering or playing of a series of images, musical, spoken or other sounds, or a combination of images and sounds, in an audible sequence." Tenn. Code Ann. § 39-14-139(a)(3) (Supp. 2009).

Finally, the creation of counterfeit movie and music recordings, which duplicate not only the sound or video but also the original artwork, labels, and packaging, may be prosecuted as a violation of Tenn. Code Ann. § 39-14-115(a)(1) (Supp. 2009). This statute provides that a person commits the offense of criminal simulation who, "with intent to defraud or harm another":

(A) Makes or alters an object, in whole or in part, so that it appears to have value because of age, antiquity, rarity, source or authorship that it does not have;
(B) Possesses an object so made or altered, with intent to sell, pass or otherwise utter it; or
(C) Authenticates or certifies an object so made or altered as genuine or as different from what it is.

ROBERT E. COOPER, JR.
Attorney General and Reporter

GORDON W. SMITH
Associate Solicitor General

RACHEL E. WILLIS
Assistant Attorney General

Requested by:
The Honorable William L. Gibbons
District Attorney General
Thirtieth Judicial District
201 Poplar Avenue, Third Floor
Memphis, Tennessee 38103-1947