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ARSCLIST  June 2016

ARSCLIST June 2016

Subject:

Re: Pre-1972 sound recordings

From:

Dennis Rooney <[log in to unmask]>

Reply-To:

Association for Recorded Sound Discussion List <[log in to unmask]>

Date:

Sat, 4 Jun 2016 18:56:00 -0400

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (168 lines)

Kudos to John Haley for ingesting all that material and making it
intelligible to the rest of us. Many thanks.

DDR

On Sat, Jun 4, 2016 at 2:35 PM, John Haley <[log in to unmask]> wrote:

> Thanks for posting all that copyright news, Stephen.  I finally got to read
> the court's decision, which is linked in one of the articles.  The articles
> themselves get a lot wrong--nobody understands copyright issues very well,
> especially journalists who write about them, it seems.
> .
> The decision itself is well written and clear, and on the facts presented,
> I believe it is correct.  I think it may stand up fine on appeal, although
> procedurally the case is odd, as the trial court effectively tried the
> whole case, with depositions and experts and evidence, in the course of
> deciding summary judgment motions.  That is unusual and might form the
> basis for reversal on procedural grounds.
>
> It is also impossible not to notice what a poor job the plaintiffs' lawyers
> did in the case (and their witnesses testified poorly as well).  Their
> collective botches will probably mean that that the decision will not
> ultimately get reversed on the merits, whatever procedural course it takes
> from here on out.  However, one never knows what the Ninth Circuit will do.
>
> Legally, the decision, though novel, seems correct to me.  I am a retired
> lawyer who now does restoration work, and there is no doubt that the work I
> do in restoring something is anything but "trivial" or "mechanical."  It
> definitely ads a creative element, and no two restoration engineers are
> likely to come up with exactly the same result.  It takes a lot of skill
> and creativity to do it well, and the result is a quite different
> experience from the original, in most cases.  The decision stands for the
> proposition that I am entitled to a federal copyright for my restorations
> of pre-1972 recordings (and can register them), protecting my work from
> being ripped off by certain disreputable historical labels that are known
> for doing that.  Unfortunately, most of the rip-off labels operate outside
> the US, and theoretically, they could just make some EQ changes and claim
> their own derivative work. so the practical effect is not huge, but it is
> nevertheless good to see a case that acknowledges the value of restoration
> work for what it really is.
>
> One of the articles is wrong in saying that this decision affects Public
> Domain.  That never comes into play, because the pre-1972 recordings at
> issue were never copyrighted (under federal law).  Something has to have
> passed thru copyright protection to reach PD.  These recordings were all
> pre-1972 so could not have been copyrighted under federal law.  The real
> issue buried in the case is whether the recordings can be subject to
> California's state law copyright statute (there is no doubt that federal
> law provides no copyright protection).  The case says no, because the
> remasterings of the recordings that were used are entitled to federal
> copyright protection, and federal copyright law, where it applies,
> pre-empts state copyright law.  Therefore a federal exception for
> broadcasting applies in this case, and the defendants owe nothing to the
> plaintiffs.
>
> CA is one of the handful of states that try to "fill the void" by providing
> for state law copyright protection for pre-1972 recordings.  New York has
> done it by unclear and very messy decisional law (EMI v. Naxos and
> progeny).  Other states openly recognize that there is no such thing there
> as state law copyright.  Some states try to fill the void with theories
> under regular property or tort law.  The result is a swamp of inconsistent
> and illogical state law.  ARSC has tried for several years to get Congress
> to federalize the copyright law of all recordings, pre-empting the mess of
> state law, which really needs to hit the floor, in my humble opinion.
>
> Another article is mostly wrong where it suggests that the decision is bad
> for artists.  The artists involved (or their estates) own very little of
> what is at stake with the recordings.  Rather, the big record companies own
> the vast majority of old recordings.  Protection of the artists is mostly a
> bogus issue,with a few exceptions where artists were smart enough (and had
> enough bargaining power) to keep ownership of their own recordings.  That
> is rare.
>
> The decision provides excellent discussion of what it takes to make a
> remastering of a pre-1972 recording validly copyrightable now, under
> federal law.  This is a useful case, and it will be good to see what
> happens to it on appeal.
>
> Best,
> John Haley
>
>
>
>
>
>
>
>
>
>
>
>
> On Fri, Jun 3, 2016 at 6:06 PM, Leggett, Stephen C <[log in to unmask]> wrote:
>
> > http://uk.practicallaw.com/w-002-5422?source=rss
> >
> >
> >
> http://www.hypebot.com/hypebot/2016/06/cbs-dodges-pre-1972-royalties-claim-with-disatorous-court-ruling-that-new-masters-deserve-new-copyri.html
> >
> >
> >
> > -----Original Message-----
> > From: Association for Recorded Sound Discussion List [mailto:
> > [log in to unmask]] On Behalf Of Leggett, Stephen C
> > Sent: Thursday, June 02, 2016 2:33 PM
> > To: [log in to unmask]
> > Subject: Re: [ARSCLIST] Pre-1972 sound recordings
> >
> >
> >
> https://www.techdirt.com/articles/20160602/07371934600/this-is-bad-court-says-remastered-old-songs-get-brand-new-copyright.shtml
> >
> >
> >
> http://www.broadcastlawblog.com/2016/06/articles/us-district-court-finds-digitally-remastered-pre-1972-sound-recordings-are-derivative-works-covered-by-federal-law-dismisses-suit-against-broadcaster-seeking-over-the-air-p/#.V1Bm7d0QEjE.twitter
> >
> >
> >
> > -----Original Message-----
> > From: Association for Recorded Sound Discussion List [mailto:
> > [log in to unmask]] On Behalf Of Leggett, Stephen C
> > Sent: Thursday, June 02, 2016 9:02 AM
> > To: [log in to unmask]
> > Subject: Re: [ARSCLIST] Pre-1972 sound recordings
> >
> >
> >
> http://www.completemusicupdate.com/article/cbs-radio-defeats-pre-1972-royalties-claim-with-remaster-reboots-copyright-argument/
> >
> > http://radioink.com/2016/06/02/end-copyright-war/
> >
> >
> >
> http://www.nationallawjournal.com/home/id=1202759076693/CBS-Wins-Fight-Over-Rights-to-Play-Oldies?mcode=1202617074964&curindex=1&slreturn=20160502085801
> >
> >
> >
> > -----Original Message-----
> > From: Association for Recorded Sound Discussion List [mailto:
> > [log in to unmask]] On Behalf Of Michael Shoshani
> > Sent: Wednesday, June 01, 2016 5:59 PM
> > To: [log in to unmask]
> > Subject: Re: [ARSCLIST] Pre-1972 sound recordings
> >
> > What's going to happen is that dozens of independent producers are going
> > to tweak and remaster needledrops from pre-1972 vinyl and even shellac,
> > with signal processing/alteration and possibly time/pitch shifting. And
> the
> > producers will claim copyright protection under this precedent.
> >
> > I mean, I'm no attorney, but doesn't this decision basically undo Capitol
> > vs Naxos? (A case I personally feel had no business being brought, as the
> > original HMV work would have been issued by Victor under license rather
> > than under copyright; the US was not part of any reciprocal copyright
> > conventions pertaining to sound recording at the time the record in
> > question was originally published, and Capitol itself was over a decade
> > away from formation...)
> >
>



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