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ARSCLIST  December 2016

ARSCLIST December 2016

Subject:

Re: Pre-1972 sound recordings

From:

"Leggett, Stephen C" <[log in to unmask]>

Reply-To:

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

Date:

Tue, 20 Dec 2016 15:03:35 -0500

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (1 lines)

http://www.hollywoodreporter.com/thr-esq/new-york-appeals-court-reverses-big-decision-pre-1972-sound-recordings-957856

"New York Appeals Court Rules No Public Performance Rights in Pre-1972 Sound Recordings
In a decision that could save satellite radio giant SiriusXM at least $5 million and represent a huge relief to terrestrial radio operators and others who broadcast older music, a New York appeals court on Tuesday concluded that New York's common law doesn't protect the public performance of pre-1972 sound recordings and therefore broadcasters don't have to pay.

The decision comes in one of the many putative class action lawsuits brought by Flo & Eddie of the Turtles, best known for their 1967 hit, "Happy Together." The duo filed litigation in New York, California and Florida with the contention that SiriusXM needed their authorization to play their songs. Because their works were authored before Feb. 15, 1972, when sound recordings became protected under federal copyright law, they sued under various state laws to be compensated for what was played on stations like SiriusXM Radio's '60s on 6.

The lawsuit was eye-opening to many who assumed that the performance of older sound recordings required no authorization. After all, broadcasters regularly perform the early works of Bob Dylan, The Rolling Stones, The Beatles and others. It's long been taken for granted that publicity is all that is given to recording artists, although there's been intense lobbying efforts over the years to change that.
....."

-----Original Message-----
From: Association for Recorded Sound Discussion List [mailto:[log in to unmask]] On Behalf Of John Haley
Sent: Thursday, September 01, 2016 4:10 PM
To: [log in to unmask]
Subject: Re: [ARSCLIST] Pre-1972 sound recordings

James, to answer your question about federal copyright law pre-empting state law,  see this:

https://www.law.cornell.edu/uscode/text/17/301

Starting in 1978, federal copyright became explicitly preemptive of state law, although Section 301(c) allows state law to continue to apply to
pre-1972 recordings, up through 2067.  However, the new copyright that would be granted to the restoration of a pre-1972 recording, by the logic of the case, should supplant any contrary state law, as it did for the specific purposes of the case.  Keep in mind that the case stands for the proposition that only the restored version is entitled to be copyrighted--the original unrestored recording remains just as it was, regarding copyright issues.

I have no idea if the Copyright Office will accept a filing of a restoration, as the case indicates would be appropriate.  Maybe I will try it and see.

I personally think that the state law in a small handful of states that applies to pre-1972 recordings is a bad thing that should not be there.  By now, most recordings made before 1972 have already made the money that was expected for those recordings' owners and the involved artists.  The value of such a recording now, for the vast majority of such recordings, is in their historical interest.  The absence of federal copyrights for pre-1972 recordings in this country goes at least part of the way toward ameliorating our poor country's very irrational public domain law, which is
way out of step with the rest of the world.   In the vast majority of
cases, the technical owners of pre-1972 recordings will never exploit them
and in many cases have no idea what they even own.   Yet such recordings
are an important part of our cultural heritage that should not remain locked up, to little or no purpose.

Best,
John









On Thu, Sep 1, 2016 at 12:01 PM, Amanda Morrow <[log in to unmask]> wrote:

> Thank you so much, this is exactly what I was looking for.
>
> On Thu, Sep 1, 2016 at 9:48 AM, Leggett, Stephen C <[log in to unmask]> wrote:
>
> > Folks might want to look at this earlier article to see some of the
> > reasoning, right or wrong
> > http://us.practicallaw.com/w-002-5422
> >
> > And here is the reference Copyright Office Circular  56.  See
> > derivative works section bottom of page 3 and first part of page 4
> > http://www.copyright.gov/circs/circ56.pdf
> >
> >
> >
> >
> > -----Original Message-----
> > From: Association for Recorded Sound Discussion List [mailto:
> > [log in to unmask]] On Behalf Of Wolf, James L
> > Sent: Thursday, September 01, 2016 10:26 AM
> > To: [log in to unmask]
> > Subject: Re: [ARSCLIST] Pre-1972 sound recordings
> >
> > John,
> >
> >    Thanks for the tip to look back to your post of June 4, 2016. I
> > see your point of how the plaintiff's lawyers did a poor job. But
> > even though I'm a layman, I'm going to respectfully disagree on one
> > of your major points, where I add emphasis:
> >
> > "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."
> >
> > While I respect the work that a professional remastering engineer
> > does, and believe that such work is worthy of copyright protection,
> > I cannot believe that a federal copyright on remastering work
> > essentially voids
> all
> > state law protections. Like you, I am no fan of that hodge-podge of
> > laws and would like to see it simplified by a sensible federal law.
> > But if
> your
> > (and presumably the judge's) reasoning stands, then with an EQ tweak
> > and
> an
> > application for copyright, all state law protections become null and
> void.
> >
> > Contrary to that, I'd assert that since the present federal
> > copyright law on sound recordings does *not* void state law
> > protections, Judge Anderson exceeded his authority by claiming that
> > it does. I don't have the
> specific
> > pieces of law on hand to back up my assertion, but based on twenty
> > years
> of
> > discussing this with many people, here and in the Library, I'm
> > reasonably sure that I'm correct.
> >
> > Oddly, I'm arguing against my personal and professional interests here.
> > Many parts of my job at the Library would become simpler if I could
> > skirt those state laws on recordings. But as I said in my earlier
> > post, I'm having a hard time seeing this decision stand since its
> > effect is so sweeping,  effectively re-writing a relationship
> > between federal and
> state
> > sound recording law that has stood for more than 40 years.
> >
> > If you have further arguments to counter mine, I would like very
> > much to hear them. Obviously, the final decisions aren't ours, but I
> > enjoy discussing this stuff, and I'd be very happy to be proven
> > wrong in this case. Thanks!
> >
> > James
> >
> >
> > Standard disclaimer: All opinions are personal. No representation of
> > Library of Congress policy or position is stated or implied, etc.
> >
> > -----Original Message-----
> > From: Association for Recorded Sound Discussion List [mailto:
> > [log in to unmask]] On Behalf Of John Haley
> > Sent: Tuesday, August 30, 2016 9:38 PM
> > To: [log in to unmask]
> > Subject: Re: [ARSCLIST] Pre-1972 sound recordings
> >
> > Please look back at my prior discussion of the decision earlier in
> > this post, I think back in June.  The case has some procedural
> > oddities but
> when
> > I read it I thought it was well reasoned and I predicted that it
> > will
> stand
> > up on appeal, at least as to the merits of the decision.
> > Best,
> > John Haley
> > On Aug 30, 2016 5:11 PM, "Wolf, James L" <[log in to unmask]<mailto:[log in to unmask]
> gov>>
> > wrote:
> >
> > > Ben,
> > >
> > > Well, there's money on both side of this issue, and plenty of it.
> > > So I doubt that it will be the determining factor.
> > >
> > > I was hoping that those who have some expertise with sound
> > > recording copyright and/or legal arcana could weigh in or
> > > speculate on the future of this remarkable decision. Specifically,
> > > have there been any decisions like this - based on poor technical
> > > understanding or with tremendous impact on the rights of previous
> > > rights holders, and which
> > have survived appeal?
> > > Furthermore, does the fact that this was a federal court impacting
> > > the rights provided by state laws have any bearing?
> > >
> > > It seems like an open and shut case of judicial incompetence to
> > > me, but I don't have the knowledge to say that without some reservation.
> > >
> > > James
> > >
> > > All opinions personal, no representation of LoC policy, etc.
> > >
> > > -----Original Message-----
> > > From: Association for Recorded Sound Discussion List [mailto:
> > > [log in to unmask]<mailto:[log in to unmask]>] On
> > > Behalf Of Benjamin Roth
> > > Sent: Tuesday, August 30, 2016 2:17 PM
> > > To: [log in to unmask]<mailto:[log in to unmask]>
> > > Subject: Re: [ARSCLIST] Pre-1972 sound recordings
> > >
> > > Just follow the money!
> > > Ben Roth
> > >
> > >
> > > -----Original Message-----
> > > From: Association for Recorded Sound Discussion List [mailto:
> > > [log in to unmask]<mailto:[log in to unmask]>] On
> > > Behalf Of Wolf, James L
> > > Sent: Tuesday, August 30, 2016 10:00 AM
> > > To: [log in to unmask]<mailto:[log in to unmask]>
> > > Subject: Re: [ARSCLIST] Pre-1972 sound recordings
> > >
> > > I'm deeply skeptical that this decision will stand on appeal. It's
> > > an obvious misunderstanding of what remastering is in relation to
> > > an original work, combined with a complete disregard for the
> > > impact of the ruling on previously established rights. Either of
> > > those is enough of an excuse for a competent judge to throw this
> > > in the trash, or at least stay it pending further study.
> > >
> > > Can anyone speculate how or why this decision could stand?
> > >
> > >
> > > James
> > >
> > >
> > > All opinions personal, etc.
> > >
> > > -----Original Message-----
> > > From: Association for Recorded Sound Discussion List [mailto:
> > > [log in to unmask]<mailto:[log in to unmask]>] On
> > > Behalf Of Leggett, Stephen C
> > > Sent: Tuesday, August 30, 2016 8:54 AM
> > > To: [log in to unmask]<mailto:[log in to unmask]>
> > > Subject: Re: [ARSCLIST] Pre-1972 sound recordings
> > >
> > > http://www.digitalmusicnews.com/2016/08/29/decision-
> > > remastering-disrupt-copyright/
> > >
> > > "How a Court Decision on Remastering Could Completely Change
> > > Copyright
> > Law"
> > >
> > > -----Original Message-----
> > > From: Association for Recorded Sound Discussion List [mailto:
> > > [log in to unmask]<mailto:[log in to unmask]>] On
> > > Behalf Of Leggett, Stephen C
> > > Sent: Friday, June 03, 2016 6:06 PM
> > > To: [log in to unmask]<mailto:[log in to unmask]>
> > > Subject: Re: [ARSCLIST] Pre-1972 sound recordings
> > >
> > > 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]<mailto:[log in to unmask]>] On
> > > Behalf Of Leggett, Stephen C
> > > Sent: Thursday, June 02, 2016 2:33 PM
> > > To: [log in to unmask]<mailto:[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-copyrigh
> > > t.sh
> > > tml
> > >
> > > http://www.broadcastlawblog.com/2016/06/articles/us-district-court
> > > -fin
> > > ds-
> > > 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]<mailto:[log in to unmask]>] On
> > > Behalf Of Leggett, Stephen C
> > > Sent: Thursday, June 02, 2016 9:02 AM
> > > To: [log in to unmask]<mailto:[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]<mailto:[log in to unmask]>] On
> > > Behalf Of Michael Shoshani
> > > Sent: Wednesday, June 01, 2016 5:59 PM
> > > To: [log in to unmask]<mailto:[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...)
> > >
> >
> >
>
>
> --
> Respectfully,
>
> Amanda Morrow
> Electronic Resource Cataloger & Music Digitization Specialist John C.
> Pace Library University of West Florida
> 850-474-2453
>
>
> <http://www.goodreads.com/author/show/875661.Rumi>
>  bobbiblogger.wordpress.com
>

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