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.

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Companies: abs entertainment, cbs, riaa

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Comments on “This Is Bad: Court Says Remastered Old Songs Get A Brand New Copyright”

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Anonymous Coward says:

Re: If copyright is so great...

Copyright is only good if it doesn’t last forever. Otherwise, it doesn’t fulfill its original purpose of incenting artists to create new works. Perpetual copyright would just incentivize the copyrighting of everything possible and collecting rent and suing anything that might be even close to a derivative work.

Perpetual copyright is only great for corporations that never die.

Anonymous Coward says:

Re: Not New

Sorry, you still lose loser.

Stop giving any artist that sells their soul to the devil your money regardless of the venue.

What stupid world do you live in to believe dirt bags are not profiting off the artists in a live performance? The agreements could be anything you don know!

My philosophy, I will give an artist money, provided they have not sold out. Once they do sell out its clear they never loved the music, they just love the money!

I feel no sorrow for any artist dying in street when their bullshit luck runs out after selling their soul!

Baron von Robber says:

Re: Re: Re:

Ok…so the original work is copyrighted because it was different from all other works.

But if remastered work of the original work is remastered so much, it becomes an original enough to be copyrighted.

Unless somebody who didn’t own the original, remasters it to the same degree, then it’s not copyrightable.

Whew…that’s some catch that Catch-22.

David says:

Re: Re: Re:

This is addressed in the ruling. Only the copyright holder of the original recording is “authorized” to make the derivative masters. Any masters made by someone else would have been done so without authorization, and would therefore be illegal.

That doesn’t jibe since the whole case is predicated on the original being out of copyright in the first place. So there is no “copyright holder of the original recording”.

You still need to get physical access to the old masters, however.

I’m somewhat surprised at Mike’s surprise here: this has been standard fare with sheet music for centuries: try getting hold of any Bach edition out of copyright. The music publishers “remaster” the same material over and over (mostly in the name of musicology with “revised” editions) in order to get renewed copyrights on it.

They are a bit in a bind because engravings from the turn of last century, more or less the heyday of high quality plate engravings, are running out of copyright while “modern” computer typesettings have not yet matched the old quality.

But in the end, it boils down to the same: it doesn’t matter if remastered versions are actually worse as long as you manage to flush the old stuff from store and private shelves.

Peter (profile) says:

Two questions to CBS

1. If the remastered version is so different from the original that it warrants a new copyright, shouldn’t it be released as a cover version under the name of the engineer rather than the original artist? When I buy a Beatles CD, I expect the Beatles and not the work of an anonymous computer expert.

2. If the engineers add so much creative value, do you pay them royalties for every copy sold instead of a engineer’s salary?

DogBreath says:

Re: Two questions to CBS

  1. CBS: We don’t care what you expect, but what we expect is for you to pay us, now hand over the dough.

    2. CBS: Wage Slaves… I mean “Employees” do not get royalties as they are contracted to “work for hire” and we own everything they do under said contract, including their immortal soul. They really should have had a lawyer look over that employment contract before they signed it, too late now. Muhahahahaha!

Anonymous Coward says:

Re: Two questions to CBS

When I buy a Beatles CD, I expect the Beatles and not the work of an anonymous computer expert.

Be more imaginative here, and consider the era when these classic albums were recorded. Audio production technology has come a long way, and even moreso the consumer playback experience. Mastering, which is considered a form of quasi-voodoo magic in the music industry, is all about quality control and accurate reproduction across a wide variety of consumer playback systems (earbuds, headphones, cell phones, laptop speakers, desktop speakers, bookshelf stereos, jukeboxes, bar PAs, grocery store ambience, dance club floors… you get the idea).

Back in the ’60s, the mastering engineer would have had to make slight alterations to the original master tapes as he cut them to vinyl plates because he had to take into consideration the limits of consumer playback systems. He might have had to trim out some bass frequencies because they literally bounced the needle out of the groove, he might have brightened up the top end knowing that most home equipment would be duller in those frequencies than the fancy EMI Studios equipment could reproduce. He’d have to make equalization adjustments for the songs as they approach the center of the record because the shorter and smaller grooves present more difficulties than the outer grooves. If an album side was longer than 15 minutes, he would have to make decisions about what frequencies to dampen in the mix in order to cut narrower grooves to accommodate the longer side. Ultimately, he might have to make some decisions that drastically alter the sound as it was perceived by the musicians in the tracking/mixing stage.

Now fast forward decades, and a lot of the compromises the mastering engineer made in the ’60s no longer need to be made. That ultra sub-sonic Moog tone that couldn’t translate to vinyl? Now it fits. The extended 22 minute version of the final track that had to be edited down to 12 minutes to fit on the side? Now the whole thing fits. Did the tracks have to be re-arranged from their intended order to make both sides of the record roughly equal in running time? No longer an issue with digital media.

What I’m saying is that, in some cases, these modern remasters are actually much more like what the original musicians intended for the audience to hear; much more like what they themselves heard in the studio while they were making the album.

As for your second point, it would be odd for a lowly tracking engineer to get royalties on a record, but it’s not unheard of. It’s even more common for mix engineers to earn royalties. I’m not personally aware of any mastering engineers who receive royalties, but I don’t see why it couldn’t happen. I could very easily imagine Bob Ludwig or Masterdisk studios offering to master a smaller artist’s album at a discount, but with points on royalties instead. But, knowing the way the mastering process works, it’s just not the kind of thing that an engineer would bother with. They work on each album very quickly, because they have to; if they listen to a recording for too long they’ll lose objectivity. It’s much simpler for them to take the $500 (or whatever amount is negotiated) per song minute and be done with it.

Mostly you are paying for their ears (and yes, critical listening is certainly a thing; this is why tech bloggers might want to consider staying in their lane before they attempt to be snarky.), and their incredibly expensive listening environments. The required acoustic treatment to build out the room, and a capable audio reproduction system, probably starts at $500,000 on the extremely low end of the spectrum. And it’s not something “digital” will save you from. Acoustics are acoustics. Bass, for instance, is impossible to hear properly in an untreated room with dimensions smaller than the wavelength of the tone (measured in feet). It’s all physics.

Baron von Robber says:

Re: Re: Two questions to CBS

“Bass, for instance, is impossible to hear properly in an untreated room with dimensions smaller than the wavelength of the tone (measured in feet). It’s all physics.”

Depends. I played my bass thru a Gallien-Krueger that had a direct line out, so the engineer could go thru that or mic my speakers

jupiterkansas (profile) says:

Re: Re: Two questions to CBS

You are not describing anything deserving of a new copyright, because all the new elements the engineer is “revealing” is still in the original recording. They aren’t adding anything new, but simply creating an alternate version for playback on more sensitive equipment – such as the difference between mastering for LP and for CD, or turning a mono recording into stereo.

Anonymous Coward says:

contracted to “work for hire”

i contracted for years and just about every contract stated that any idea i had, day or night – whether it had anything to do with my work for that company – belonged to them. including any idea i might have for the following 6 months to one year after leaving their employ.

i further promised to move hell and earth to make sure the company would receive their patents on any idea i had.

do i need to tell you that i never, ever had an idea or even the faintest twinkle of one?

PaulT (profile) says:

Re: Is it time to abolish copyright?

I’ll just repeat my usual position – completely abolishing copyright would be bad, because it would enable major labels to literally steal the music of independent artists. They could re-record with their puppets without licences, and/or leverage their marketing power to sell thousands of copies while the people who actually wrote and recorded the works get nothing. An unknown independent artist tries releasing their version of their original song, while a major label gets Rihanna to release a cover version free of royalties to the actual author – guess who sells the most? Worse, the original artist could be branded as having recorded a cover while the “original” is the major label work in the minds of the public.

No, there needs to be some protection, it just needs to be far more akin to the original version of copyright than the bastardised version that’s been mutated to fit the needs of corporations.

Anonymous Coward says:

Re: Re: Is it time to abolish copyright?

completely abolishing copyright would be bad, because it would enable major labels to literally steal the music of independent artists.

The labels will be doing that in direct competition with the artists themselves, who can release their music for free and use patreon and the like to enable their fans to pay them. Eliminate copyright, and you eliminate the labels ability to control the market. Many independent artists would consider ant attempts by the labels to do that to be free advertising, as those people who listened to their music as distributed by the labels, and enjoyed it would soon find their way to the artists site.

PaulT (profile) says:

Re: Re: Re: Is it time to abolish copyright?

“The labels will be doing that in direct competition with the artists themselves, who can release their music for free and use patreon and the like to enable their fans to pay them.”

As they are now. Did you notice that despite having these avenues available to them, they are unable to break the majors’ stranglehold on mainstream media and distribution and still manage to make piles of money more than the average indie? Now imagine they’re using the exact same music as well. Do you not see the problem?

“Many independent artists would consider ant attempts by the labels to do that to be free advertising, as those people who listened to their music as distributed by the labels, and enjoyed it would soon find their way to the artists site.”

Unless the labels’ own advertising make the mainstream audience believe that their artist was the originator of the song, so they don’t go looking for the original artist. After all, without copyright, why would they even credit the original artist?

If that sounds unlikely, go through Elvis’ catalogue and ask mainstream listeners about the many, many cover versions he recorded. The likelihood is, most of them won’t even know they were covers, let alone be able to name the original artists. If you find someone who can do that, ask them if they’ve ever bothered to go looking for the originals, let alone checked out other music by the same artist. Chances are, you will find very few people who did so.

jupiterkansas (profile) says:

Re: Re: Re:2 Is it time to abolish copyright?

At least music has compulsory licensing.

How about: “I wrote a book.” Warner Brothers says “We’re making a movie of it and you get nothing.”

But the real question is…

Would I still write that book knowing Warner Brothers could go make that movie? Would Warner Brothers still make that movie even if everyone could copy it?

Yes, they probably would.

PaulT (profile) says:

Re: Re: Re:3 Is it time to abolish copyright?

“At least music has compulsory licensing.”

Under the current system, but would that carry over if copyright was abolished? I would have thought any licencing would depend on the copyright, and removing copyright would effectively make everything the same status as a public domain song would be currently. I could be wrong though.

“Would Warner Brothers still make that movie even if everyone could copy it?”

Everybody can copy it in the current system, but that doesn’t seem to stop people making movies. Maybe the implicit permission of no copyright would change things, but if there’s profit to be made you can be sure they’ll pick any book they fancied to adapt for nothing.

Anonymous Coward says:

Re: Is it time to abolish copyright?

In my own head copyright on most things has been abolished for years, every time the *AA’s come up with new ways to screw the public of their rights, I make it my duty to educate those around me friends, family, co-workers etc., to also ignore copyright.

My hit rate is pretty good:
4 using VPNs
3-4 using unofficial streaming
8 or so more sharing offline

Anonymous Coward says:

Kill copyright on sound recording after 35 years

So, if the copyright can be reclaimed after 35 years, let’s just kill copyright on sound recordings after 35 years. Wow, how copyright has changed, from forcing works into the public domain, to keeping control as long as possible. It’s almost like not having copyright law at all.

That One Guy (profile) says:

And let the looting commence...

Have a song that slipped into the public domain before you managed to buy the right politicians to extend the duration? Make a remastered version, claim a new copyright on it, and let the bots do the rest taking down all the ‘infringing’ copies until only yours is left.

I don’t imagine many people will be willing to spend the time and money demonstrating that their copy was the ‘original’ and therefore in the public domain, and since courts have already bought the idea that similar sounding songs are good enough it would be up to the accused to demonstrate their innocence on a very imbalanced playing field.

I have to hand it to the mess that is Copyright, even when I have absolutely no respect for the law somehow rulings keep coming out and arguments keep being made to make me respect it even less.

DB (profile) says:

How is “listening carefully” not valid for an audio recording?

Yes, it’s subjective. But if two audio works are so similar that a casual listener, not even “listening carefully”, considers them the same, why should they be granted a new copyright?

I understand that mastering is a skilled craft that involves many judgement calls. But many skilled crafts, with considerable “sweat of the brow” (in the legal sense) don’t result in copyright-worthy works. A brick layer makes judgements constantly. So does a tile setter. And many other workers. They don’t get copyrights. For good reason.

That Anonymous Coward (profile) says:

Gee does this explain a recent glut of “remastered” recordings hitting the market?

It really is time to tear the bandaid off of copyright.
Go in and cut out the dead tissue, apply antibiotics to kill off the infections, and let the wound heal naturally.

Copyright is nothing like what was envisioned, it has been twisted in to some sort of super bug that is infecting everything else to protect itself. We need to stop the opportunistic infections of the cartels, and make them stand on their own and tend to the barren garden of public domain to cultivate a future that isn’t just The Expendables XXIV & the newest Star Trek reboot now with 400% more lens flare.

Anonymous Coward says:

all those bribes had to pay off sometime. The court could have done its job and ruled normally but then they would have only made what their job pays them, this way they make extra money at the expense of screwing over millions of people they will never meet and therefore don’t give a dam about.

I find it truely amazing how so many people in positions of power are willing to ruin the lives of thousands or more of others solely for a short term cash benefit.

That One Guy (profile) says:

Re: Re:

You don’t actually have to assume bribery to get a result like this, you just need to assume that absolutely nothing trumps copyright as far as importance goes, and that the public has absolutely no bearing in any decision regarding it beyond a minor, dismissive footnote. You know, the same ideas that maximalists throw out like confetti any chance they get.

Assume those two things and yet another ruling screwing over the public and creators in the name of The All-Mighty Copyright is disappointing, but not even remotely surprising.

That One Guy (profile) says:

Re: Re: Re: Re:

‘Guilty conscience’ for… what exactly? This may surprise you but it’s entirely possible to disagree with a law and/or how it’s applied for reasons other than feelings of guilt related to it.

I will agree with the second half at least though, hopefully this will be overturned, because as it stands it has the potential for causing all kinds of problems.

PaulT (profile) says:

Re: Re: Re:2 Re:

“‘Guilty conscience’ for… what exactly?”

Being the strawman in his imagination. Since the corporate sycophants can’t imagine any genuine reason to be against the current regime, they assume that anyone who doesn’t bow down to their masters’ every whim must be a pirate. You know, despite hundreds of valid complaints being discussed at length here every year.

That One Guy (profile) says:

Re: Re: Re: How does this affect the original?

Ah, I think I see what you’re getting at now. Best I can figure being in the public domain would put it up for grabs for anyone to claim it, not just the original creator/owner, given being in the public domain technically gives anyone and everyone ‘authorization’ to use it as they wish.

rgoes (profile) says:

Re: Re: How does this affect the original?

But then you are ignoring that the host site can also easily distinguish both version and that the uploader may file a counter-notice.
I don’t know how much will change regarding fake request and in this case malicious takedowns, and then I’m not sure if users may be also to sue back those companies, but at least they wouldn’t be sued.
For the providers it may be easier, as they would be very interested in keeping the old public domain versions, and don’t have to pay royalties to anyone. They would just mark those files as non-targetable for takedowns.
In my opinion, only the artist would be screwed, since the record labels will also have a copyrighted version of their work, even if they claim it back after 35 years.

hopponit (profile) says:


This lovely idea needs to be teamed up with something else that’s out. Did you read about the takedown of an AI reinterpretation of BladeRunner? How about the AIs version being granted its own copyright for its “remaster” of BladeRunner”? If we can get that to happen maybe it will open enough cans of worms to get some push back against this nonsense.

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