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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...)
>