This Is Bad: Court Says Remastered Old Songs Get A Brand New Copyright

from the bye-bye-public-domain dept

Whoo boy. Did not expect this one. For a while now, we've noted a variety of lawsuits over pre-1972 sound recordings, due to a quirk in copyright law. You see, for a long time, sound recordings were not covered by federal copyright at all (the compositions were, but the recordings were not). State laws did jump in to fill the gap (often in terrible ways), but in the 1970s, when the Copyright Act was updated, it finally started covering sound recordings as well... but only for songs recorded in 1972 or later. This has left all songs recorded before that in a weird state, where they're the only things still covered by a mess of confusing state copyright laws. The easy way to fix this would be to update the law to just put all such sound recordings under federal copyright law. But the RIAA has resisted this heavily, recognizing that keeping them away from federal copyright law is allowing them the ability to keep them under copyright even longer and to squeeze a lot of extra money out of music streaming companies.

Last fall, we wrote about the record labels moving on from streaming companies to instead suing CBS over its terrestrial radio operations playing pre-1972 songs as well. CBS hit back with what we considered to be a fairly bizarre defense: claiming that it wasn't actually playing any pre-1972 music, because all of the recordings it used had been remastered after 1972, and those recordings should have a new and distinct copyright from the original sound recording. As we noted at the time, an internet company called Bluebeat had tried a version of this argument years earlier only to have it shot down by the courts (though its argument ignored the whole derivative works issue).

Now, in a somewhat stunning ruling, the court has agreed with CBS that remastered works get new copyrights as derivative works of the original. You can read the full court order here. The court, correctly, notes that for a work to get a new copyright, it must show originality beyond the initial work -- and that originality "must be more than trivial."

The court relies heavily on CBS's own experts who claim that remastering involves a lot of choices by the engineer doing the remastering, as well as an audio forensics expert who insisted that by using the remastered versions, "CBS did not use any version of the sound recordings that plaintiffs claim to own." The label that's suing, ABS Entertainment, argued that remastered music is just a digital conversion of an old analog recording. ABS supplied its own expert... who apparently was completely unconvincing, mainly because his "scientific method" of analyzing the old and new songs was basically "I listened to both carefully."

CBS objects to Mr. Geluso’s testimony on the grounds that it is irrelevant, unscientific, based on unreliable methodology, and lacks adequate foundation as expert testimony. As context for these objections, it is worth recounting what Mr. Geluso did during his testing: Mr. Geluso examined the sound recordings by performing waveform and spectral analysis, as well as critically listening to them – a technique which is unexplained in Mr. Geluso’s declaration but appears to involve listening while also paying attention... While Mr. Geluso would “critically listen” to all of a recording, his actual scientific testing was limited to, in most instances, the first five seconds of each recording.... Mr. Geluso’s report also includes graphs taken from his testing software which serve as visual exhibits demonstrating his scientific testing.... However, in his deposition, Mr. Geluso could not provide an opinion as to the similarities or differences between sound recordings based only on his own graphs, protesting that he needed access to his full computer workstation.... Moreover, Mr. Geluso excluded from his report results from the first test he attempted – an “industry standard” known as phase inversion testing – which revealed differences in the first several works which Mr. Geluso compared.... Mr. Geluso then abandoned this methodology and did not directly disclose the results in his report.

Let this be a lesson to litigious companies: be careful who you hire as an expert. The court tossed out all of Geluso's testimony, meaning that ABS presented basically no evidence to contradict CBS's claims that remastered works are original enough to get a new copyright, making it easy to find for CBS on summary judgment. The court rejects ABS's reliance on older cases that said remastered works didn't create a new song by noting that those all involved unauthorized remastering, as opposed to this situation where the remastered versions were authorized:

Accordingly, the Court finds that on the record before it, Plaintiffs’ pre-1972 Sound Recordings have undergone sufficient changes during the remastering process to qualify for federal copyright protection. For example, for Ace Cannon’s “Tuff,” Dr. Begault found that the CBS version had additional reverberation, was played in a different musical key and at a faster tempo, and differed in the musical performance.... Additionally, many of the remastered versions included different channel assignments and adjustments in equalization.... In the terms identified in Circular 56, these differences between the recordings – which were explained by Mr. Inglot and objectively measured by Dr. Begault – are not merely “mechanical changes or processes … such as a change in format, de-clicking, and noise reduction.” ... Nor are the changes “trivial,” as evidenced by Plaintiffs’ repeated decisions to have experienced sound engineers remaster their works. Instead, the changes reflect “multiple kinds of creative authorship, such as adjustments of equalization, sound editing, and channel assignment.” ...

In sum, Plaintiffs have failed to create a genuine dispute of material fact as to whether the versions of Plaintiffs’ works performed by CBS included sufficient originality to qualify for a federal copyright. For the 57 works reviewed by both parties’ experts, the Court finds that the changes made during the remastering process were original within the meaning of the Copyright Act, and are thus entitled to federal copyright protection.

ABS raised a few other potential issues, each of which the court dismisses. The most interesting to me is the claim that even if the remastered versions are new works, ABS still holds the common law pre-1972 copyright on the original that is embedded within the remastered version. But, the court points out, the law treats the two works differently, and as long as CBS is playing the post-1972 version, it's in the clear:

However, the Court disagrees with Plaintiffs’ further conclusion that this results in CBS having infringed Plaintiffs’ copyrights. The relevant question is whether CBS had the right to perform the remastered, post-1972 sound recordings.12/ Under federal law, CBS has the right to perform post-1972 sound recordings on terrestrial radio without payment, and to perform them through digital platforms under a statutory compulsory license.

Now, this ruling, if it holds up under any appeal is going to have massive reverberations and implications in the world of music copyright. While the original lawsuit (as with many lawsuits over pre-1972 sound recordings) was pretty ridiculous and a blatant attempt to use legal quirks to try to squeeze extra money out of things, this ruling could upend a bunch of things in dangerous ways. First off, it's going to make a huge mess for the public domain. Record labels can now avoid public domain issues by simply "remastering" old works and getting a brand spanking new copyright that will last for another 95 years. Yes, the original work will still go into the public domain, but things are going to get difficult for the public to determine what's in the public domain and what's not. The fact that you might need to get a musicologist to analyze tracks to determine if the sound recording you have is in the public domain or subject to a brand new copyright seems like a potential disaster for the public domain. It's going to make it hellishly risky to make use of any sound recording, even if it should be in the public domain.

The court plays down this threat in a rather unconvincing footnote:

Plaintiffs also assert a policy based argument that an adverse ruling in this case will result in potentially endless extension of copyright protections for pre-1972 Sound Recordings as they are remastered into new formats.... Plaintiffs’ concerns are unwarranted because the Court’s finding of copyrightable originality is based not on a mere conversion between formats, but on the original expression added by a sound engineer during the remastering process. Such original expression is entitled to copyright protection, regardless of whether the underlying work was fixed before or after 1972.

Yeah, but that assumes that copyright holders won't carefully make changes in the remastering process to account for this fact. And that's ridiculous, because the RIAA and its labels will do just about anything to hold onto copyrights for a longer period of time.

Second, it's going to wreak havoc on the issue of termination rights. As we've discussed in the past, under copyright law, the original creator has a universal right to reclaim the copyright from anyone it was assigned to after 35 years. This has been a massive headache for the RIAA lately, as a bunch of classic artists have started to demand their songs back. The RIAA has been trying to fight this in a number of different ways... including by arguing that remastered songs get a brand new copyright. So even though the record labels may have "lost" this case (so far), they may be thrilled in the long run, because they may have just been given a massive tool to avoid both the public domain and termination rights. Remember, this is the same RIAA, who back in 1999 had a Congressional staffer named Mitch Glazier sneak four words into a totally unrelated bill (literally) in the middle of the night, to try to exempt sound recordings from copyright termination laws (and then, months later, hired that same staffer to a job paying upwards of $500k per year -- a job he still has a decade and a half later). That kerfuffle was only discovered later and a bunch of famous musicians started screaming at Congress, leading them to repeal Glazier's sneaky change. In short: if you don't believe the RIAA will make use of this new loophole to get around termination rights, you haven't been paying any attention at all.

So, in the end, even though this case is a "loss" for the record labels who brought the case, the implications of this ruling almost certainly are a massive victory for the labels in a variety of other cases, and a huge loss for the public and for artists who were expecting to reclaim their works.

Filed Under: copyright, derivative works, pre-1972 sound recordings, public domain, radio, remaster, remastering, termination rights
Companies: abs entertainment, cbs, riaa

CBS Radio Says That It Doesn't Play Pre-1972 Music, Because All Its Old Songs Are Remastered

from the well-this-should-get-interesting dept

Back in 2009, a company called Bluebeat showed up on the market offering all sorts of MP3s from musicians for $0.25 a pop -- without a license from the copyright holders. The company claimed that it didn't need to get a license because all of the songs were specially remastered, in a manner it called a "psycho-acoustic simulation." Via this, the company claimed, it was not infringing on the original artists' copyrights and, actually, held the copyright to the songs it was selling itself. This theory was, to put it mildly, completely loopy. It was a twisted attempt to reinterpret 17 USC 114(b) which said:

The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.

Not surprisingly, a judge wasted little time in saying "uh... nope" to Bluebeat.com.

However, I'm reminded of this story as it appears that CBS Radio is trying an argument that is, at least, slightly reminiscent of Bluebeat.com's in a lawsuit over pre-1972 recordings. As we noted last month, ABS Entertainment, who holds the copyright on a bunch of classic songs, filed what it hopes will be a class action lawsuit against CBS Radio and other terrestrial radio stations, arguing that it's infringing on the copyrights of pre-1972 songs that it plays on the radio. At this point, we've explained the ridiculous and complicated history of the copyright of pre-1972 sound recordings that I'm not going to repeat it. Just click on the link in this paragraph and you can read it there if you don't remember. Or you can actually read the first few pages of the legal filing embedded below which provide a decent history as well.

In the past few years, various copyright holders have been trying to use this issue of the weird copyright status of pre-1972 recordings as a wedge issue to force more money out of digital streaming platforms, with somewhat mixed results and a few settlements, including big settlements from SiriusXM and Pandora. CBS Radio is fighting back with a really unique argument. It's claiming that they don't play any pre-1972 sound recordings, because any of the music they play that was recorded prior to 1972 is played from modern digital remasters of those songs, and thus the copyright on those sound recordings is post-1972 and under federal law, rather than state copyright law. From its filing:

Contrary to those allegations, CBS’s records for the last four years show that CBS did not publicly perform any of ABS’s pre-1972 recordings. CBS does not play vinyl sound recordings.... In fact, every song CBS has played in the last four years has been a post-1972 digital sound recording that has been re-issued or re-mastered.... For example, “Tired of Being Alone” is found on UMG’s 2006 The Best of Al Green compilation.... That CD contains the re-mastered version of the song created and registered for copyright in 2000.... The “Let’s Stay Together” recording CBS played is the 2003 re-mastered sound recording as re-issued in 2009 by Fat Possum Records.... Every other song CBS played from plaintiff’s “Schedule A” also came from a CD released many years after 1972.

This is... fascinating. It seems crazy, but, then again, this legal theory was dreamed up by the copyright lawyers at Irell & Manella, the very same law firm that's pretending to represent a monkey in a copyright case. So, apparently, they like getting creative with their legal arguments.

There is one element in this argument that is so ridiculous as to almost be brilliant. Another "deep in the weeds" argument we've discussed in the past concerning copyright law is that of termination rights. Under existing copyright law, most works, even if they've been assigned to third parties, automatically return to their original creator after 35 years if those creators invoke their "termination" rights. This right cannot be signed away. And while certain works were exempt, apparently the RIAA lobbyists slept through that meeting and music was not included in the list of exempted works. And, since we just recently passed the 35-year mark since the 1976 Copyright Act went into effect (1978), some musicians have started exercising their termination rights.

And... here's the crazy bit. One of the RIAA's arguments against allowing artists to reclaim their copyrights is to argue remastered versions are subject to a separate copyright:

The second option is to re-record sound recordings in order to create new sound recording copyrights, which would reset the countdown clock at 35 years for copyright grant termination. Eveline characterized the labels' conversations with creators going something like, "Okay, you have the old mono masters if you want -- but these digital remasters are ours."

Labels already file new copyrights for remasters. For example, Sony Music filed a new copyright for the remastered version of Ben Folds Five's Whatever and Ever Amen album, and when Omega Record Group remastered a 1991 Christmas recording, the basis of its new copyright claim was "New Matter: sound recording remixed and remastered to fully utilize the sonic potential of the compact disc medium."

In other words... the RIAA labels themselves have previously argued that such digitized and remastered versions are subject to a separate copyright -- meaning, they may have screwed themselves with their own words.

From there, CBS Radio makes some more standard arguments accurately pointing out that, contrary to the claims of the copyright holders, California's state copyright law never recognized a public performance right. That argument failed when Sirius XM made it in California, but it's true. The idea that California's state copyright law ever included a public performance right is ridiculous, because such a right was never considered or exercised or even mentioned until just recently. Still, it seems slightly weird to argue the same argument that has already failed in the same court -- and, yet, once again there appears to be at least some method to this particular madness.

And that's where another odd part of the response comes in: CBS Radio invokes California's anti-SLAPP law, which allows defendants to try to get cases tossed out quickly on the basis that they were filed solely to stifle First Amendment protected speech. The SLAPP argument here seems weak, but that might be on purpose. CBS argues that broadcasting music is protected speech under the First Amendment, and that its "dissemination of the sound recordings at issue is 'connect[ed] with a public issue or an issue of public interest.'" And thus, it's effectively claiming that the lawsuit seeks to stifle its First Amendment... protected right to play music on the radio? A weak argument, yes, but perhaps on purpose. As Eriq Gardner notes in his story on this case, when SiriusXM lost its case about the public performance right in California, it was denied a chance for an immediate appeal on that issue (it would have to go through a full trial first). But, by invoking the anti-SLAPP law with the full expectation of losing, CBS Radio may hope to win the larger game, because:

One important if less known aspect of California's SLAPP law is an automatic right to appeal a denial of a motion to strike.

In other words, CBS could be thinking out its chess moves by sacrificing a pawn in order to advance its rook. Getting an appeals court to weigh in on what California law says about pre-1972 sound recordings would be particularly significant given that over on the East Coast, the 2nd Circuit Court of Appeals will consider what New York law has to say about the topic. If the appellate courts come to different conclusions, this could help set up a showdown at the U.S. Supreme Court.

So, while many of these arguments look silly on their face, the long-term strategy here seems pretty well thought out. Whether or not it succeeds, of course, is a different question entirely.

Filed Under: anti-slapp, copyright, pre-1972, pre-1972 sound recordings, remastered
Companies: abs entertainment, cbs radio