Yes, you can sell your promos

Troy Augusto is our hero today. Universal music group sued him to stop his sale of promotional CDs. He is a simple earnest modern capitalist using eBay to resell promotional CDs he buys at used from other retailers. These are copies intended for promotional use, usually sent to radio or press. UMG called this copyright infringement, essentially reading the label they always put on the lid. they maintain these copies are not authorised for sale to the public. Strangely UMG is trying to apply the Digital Millennium Copyright Act to this when the previous century of law will do fine.

The Electronic Frontier Foundation (EFF) came to Troys defense last fall. The EFF claimed that the "first sale"doctrine of 1908 covers Troys actions. (subsequently codified in the Copyright Act of 1976, 17 U.S.C. § 109.) The doctrine allows a purchaser to transfer a particular lawfully made copy of a work without consent of the copyright holder. It states very plainly that a copyright holder's rights to control the ownership of an item end once that copy is sold, as long as no additional copies are made.

UMG tried to claim this century old law did not apply. "The EFF has its facts and the law wrong. Mr. Augusto was selling promotional CDs that were the property of the record company, were licensed for personal use only, and were not permitted to be sold, as is clear from the plain language on the CDs." Note the clever use of cognitive dissonance. They forget that as soon as they transfer the CD they forfeit the right to determine future ownership.

U.S. District Court Judge S. James Otero ruled in their favor and with my own minority opinion. The promotional CDs are gifts by definition and the first rule applies. They are distributed by UMG, free and often unsolicited with no expectation of their return.

Universal plans to appeal the ruling. For the record, Troy is on his third tour in court over promos. He was previously sued by Capitol Records and Virgin Records for the same damn thing but without an army of lawyers he consented to a permanent injunction.

For Promotional Use Only

Oh the gravy train how sweet it is. The record labels give free copies of almost any release to radio stations (also to retail press etc). The tradition is as old as radio, while the some try to argue the opposite presently, at least historically RADIO SELLS RECORDS. So record labels are very willing to create ample opportunity for airplay, not just with the traditional gifts of booze, drugs and money but also with items of actual promotional value such as concert tickets and extra copies of a release.


I was lucky with this Decca promo. not only to I have the artist title and release date, I have a hand written date that preceeds it's commercial release by a few months. The promo copy below is more than 50 years old. In April of 1953 RCA was pushing Eddie Fisher hard at radio and TV. They got Eddie a TV show on the NBC network "Coke Time With Eddie Fisher." He scored two singles that year "With These Hands" and "Just To Be With You." In 1950 labels were already making exclusive promo-only pressings of records. Notice the number stamp 11840. Does that mean there were almost 12,000 promotional copies serviced? I'd actually bet it was more than that. (I think the initials E.R. belong to a promoter...)
As the RCA Victor LP implies, promo copies used to be labeled as such. Many of these lacked the obvious markings above and instead used a plain white label. These are highly sought after by collectors. They are often pressed to a higher quality of vinyl and are limited by nature. I have a few myself.

Around the mid 1980s labels began to punch out, mark, stamp, or cut-out their stock for promo. It lowered costs, but they are uninteresting to collectors in general. Of course this has another side effect. Selling them used has become all the easier. Thus creating a secondary market in used goods for which the label was never paid a retail margin. So did it actually save them any money? Nope. They were better off before with the clearly marked promo copies as below. This Bishop example is interesting because they were a pressing plant and not a label. They pressed for Session and SD records. Today radio serviced copies are ripped to a database and then sold off by impoverished interns. Already some labels are servicing music to radio in a digital format. With centralized playlists and satellite fed programs this becomes even more appealing. But the promo-copy practice continues. Their newest tactic? Lawsuits. Some online retailers have begun cooperating with labels and are removing promos from online sale. More here.