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...) > > > -- 1006 Langer Way Delray Beach, FL 33483 212.874.9626