from the bye-bye-public-domain dept
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.” ...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:
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.
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.