A Re-Mastered Song Is A New Song, Judge Rules

[MikeRivers]

In an interesting court decision, a judge ruled that a remasterd song is a new work and can be issued a copyright. "A judge recently ruled that any remastered version of a song, regardless of when the song was originally released, is considered a new work and will have full copyright protection for the life of the artist plus 70 years. That’s right – a song released in 1965, for example, remastered in 1980 or 2016 or any time in between is younger than its actual age."

 

It might make a certain degree of sense that it rates a new mechanical copyright. but the reference to the life of the artist suggests that it may apply to the music and lyrics. Time will tell. In the mean time, crank up your EQs, reverbs, and compressors, make some "creative decisions," then sit back and watch the money roll in.

http://ajournalofmusicalthings.com/remastered-songs-new-recordings-judge-rules/

[Phil O'Keefe]

I can see it getting a new SR (sound recording) copyright for the remastering, but the embodied musical work hasn't changed, and shouldn't be considered a new work with an extended copyright coverage period.

 

Since only the copyright holder has the authority to authorize derivative works, people aren't going to be able to just re-compress and EQ something and claim ownership.

 

Even so, IMHO, the judge was wrong with this decision.

[onelife]

I agree with Phil on this.

 

You could say that we agree to disagree with the judge.

[Anderton]

Laws regarding intellectual property are beyond hope

[onelife]

I believe we need to rethink the very concept of intelectual property and how we value it. There is too much effort being put into hanging on to old business models that are more stifling than beneficial.

[Anderton]

Any suggestions on where to start? Mine is don't let Disney write the copyright laws.

[nat whilk II]

My guess as to what all this means is that, for those who own pre-1972 recordings, they need to have their contracts written up differently before they authorize remastering in the first place. So they share in the profits generated by the remastered tracks.

 

This is all about who gets to keep the money generated by the remasters. The Court listened to all the experts - you know what they will have said - that mastering is an art, that lots of decisions go into mastering and that a remastered work can differ substantially from the original, etc., etc. All true enough.

 

This is a case of one set of expert witnesses beating the opposing set of expert witnesses. There will probably be appeals - this stuff is never over. And note too, the whole beef was fought out in terms of how to interpret the Copyright Office's guidelines for what constitutes an original creation. The guidelines are pretty reasonable - it's just that the real world will always keep coming up with stuff that falls between the conceptual cracks. The courts aren't there to create a perfect world, but to settle disputes when real situations are difficult in pigeonhole in terms of prior law and interpretations. Incremental change, case by case. Nice and slow, the way legal issues and concepts should evolve.

 

I don't think the law can ever ultimately capture this kind of stuff in some once-for-all formulation - it has to ultimately be hammered out at the contract level. Someone found a way to screw someone else in the music business by finding a loophole in a contract. Nothing new under the sun.

 

nat whilk ii

 

 

 

[Anderton]

I dunno. People don't go into a store and say "I want to buy a mastering job." They want to buy the music, and IMHO the music is the music no matter who masters it.

 

When I master a song, I charge a fee for my services. I would never consider myself as fulfilling the same function as the person who wrote the song in the first place. My opinion wouldn't change if I re-mastered it.

 

Now, re-mixing,,,that's a whole different animal, because it is possible to have considerable input and create something original. Compare "Valerie" by Steve Winwood to "Valerie" by Eric Prydz and in my opinion Eric would deserve a piece of the action - not all of it - for bringing something new and original to the song. But is he the songwriter, the guardian of the original creative impulse? No. Neither is the mastering engineer.

[Notes_Norton]

The suits have gone way to far. IMHO they are killing music.

[Phil O'Keefe]

The suits have gone way to far. IMHO they are killing music.

 

Yup. Sad, isn't it?

 

 

[nat whilk II]

I dunno. People don't go into a store and say "I want to buy a mastering job." They want to buy the music' date='[/i'] and IMHO the music is the music no matter who masters it.

 

When I master a song, I charge a fee for my services. I would never consider myself as fulfilling the same function as the person who wrote the song in the first place. My opinion wouldn't change if I re-mastered it.

 

Now, re-mixing,,,that's a whole different animal, because it is possible to have considerable input and create something original. Compare "Valerie" by Steve Winwood to "Valerie" by Eric Prydz and in my opinion Eric would deserve a piece of the action - not all of it - for bringing something new and original to the song. But is he the songwriter, the guardian of the original creative impulse? No. Neither is the mastering engineer.

 

On the other hand, if I were to buy a CD (when is the last time I did that??) I will always pick a remastered version over the old, original. So remastering can have considerable value in the retail world. But actually, value is not what the Court considered. They were simply trying to figure out if the remastered sound recordings (this was just about sound recordings, not about "songs") merited copyright protection.

 

So the choices are:

 

No - this would mean that you could remaster something a year before it reverts to the public domain, and a year later, your remastered sound recording has no copyright protection whatsoever. Pretty big disincentive to remastering - which would be a shame, because remastering does work wonders in a lot of significant cases.

 

Yes - in the case at hand, if you read the ruling itself, the song itself does not get a new copyright, just the "sound recording".

 

The remastering should, IMHO, count as something new in terms of a sound recording - IF the remastering was not just perfunctory digitalization and running it through noise/pop/restoration hard or software. It's troubling that a Court has to make a ruling on this sort of iffy/gray/subjective issue - but who else is there to do so?

 

Note also that the Court relied heavily on expert witnesses on this point, and that was the key to the way the ruling eventually went. If you read through the ruling, it's clear that the Plaintiff (the original guys) did a really poor job of making a case via their expert witness - the Court ruled most of their expert's testimony as inadmissible and even if admissible, insufficient. The Plaintiffs basically gave the "new work" idea no respect, had their expert witness do a half-assed job of it, and argued along simple copyright protection lines, citing cases where a "new" work was not at issue. Their expert testimony was bad enough to get tossed by the Judge, and as a result, CBS's experts had the floor exclusively and did a bang-up job of it, too. This became the key point, and the Plaintiff ended up basically gagged on this key point through their own bumbling. A bad strategy by the Plaintiff from the get-go.

 

Copyright law has to allow even for tiny alterations in derivative works. Put a moustache on The Mona Lisa and you have Marcel Duchamp's "masterpiece". It does violate common sense to a degree, but a creative alteration is a creative alteration, whatever art critics or the public might think about it's value.

 

So I go back again to the contractual stage again as where the changes need to happen. Actually I came to that conclusion before I thoroughly read the ruling, and after reading it more closely, found that the judge agrees with me From the ruling - I deleted some unnecessary verbiage and the bold is mine, too -

 

Plaintiffs’ contractual argument is....fatally defective because it misconstrues the interaction between copyright and contract law in this area. “[T]he right to claim copyright in a noninfringing derivative work arises by operation of law, not through authority from the copyright owner of the underlying work.” However, “the parties may alter this general rule by agreement.”

......it was Plaintiffs’ burden to produce the licenses under which the derivative works were created, and demonstrate that they affirmatively barred the creation of a copyrightable work. Had Plaintiffs shown that the works which CBS performed were created either without authorization, or pursuant to a license which affirmatively barred the creation of a copyrightable derivative work, Plaintiffs would have defeated CBS’s summary judgment motion. However, Plaintiffs have failed to do so.

 

Of course, how could the original copyright holders have foreseen this sort of thing happening? They couldn't, and therein lies an injustice. The digital world steamrolls the old analog world yet again. Only legislation could cure this sort of systemic injustice - and that ain't going to happen. The kind of thing I can imagine happening in France maybe, but not here in the USA.

 

nat whilk ii

 

 

[Idunno]

Well, there's another nail in the coffin of judicial brilliance.

[davd_indigo]

I spoke with a guy recently after a lecture presentation (on a totally unrelated topic to this). He is some sort of environmental engineer. He told me about a legal case he'd been somehow involved in. He said there was an "expert witness" who testified in a ridiculously flimsy case. He said he spoke to the expert after the trial. The "expert" told him that it's not a matter of right/wrong, it's the "argument" that's presented.

 

I know it's fantasy on my part, but I still say the legal system needs to be redesigned. I'd say have Google do it, based on some system of the "scales of justice" - I know, that's another fantasy. But the legal process currently in place has little to do with right, wrong, or logical sense and more to do with manipulating the system to the advantage of the deepest legal pockets.

 

And another thought occurred to me (added later). I have a problem with the whole opinion aspect of out legal system. I know, I'm naive, but I think I'm throwing an idea out into the universe and maybe someone will repeat it in a conversation. I'm worried about the presidential election because of the whole supreme court judge issue. I'm afraid the religious right wing will get a bible thumper who believes in magic and want's to turn back the hands of time. And in a time when we have something like 7.4 billion people on the planet (and no more water to go around) people are fighting for and manipulating the legal system to ban abortions and birth control.

 

I know I've gotten political. I am sorry but the legal system thing steered me left.

[Anderton]

Yes - in the case at hand, if you read the ruling itself, the song itself does not get a new copyright, just the "sound recording".

 

I still don't see how mastering is the "sound recording." All the sounds were already recorded...

 

[Mandolin Picker]

Given the intended confusion over copyright law, compounded by the totally ridiculous time span of copyrighted materials, expect to see more of this. Patent law is almost as bad - its only redeeming virtue is that it actually does expire in a relatively reasonable time period.

 

And look for more copyright craziness in the near future as Micky Mouse is slated to enter the public domain in the next couple of years. Time for Disney to lawyer/lobbyist up!

[Anderton]

And look for more copyright craziness in the near future as Micky Mouse is slated to enter the public domain in the next couple of years. Time for Disney to lawyer/lobbyist up!

 

See post #6

 

[MikeRivers]

 

I still don't see how mastering is the "sound recording." All the sounds were already recorded...

 

This is what they used to (and maybe still do) call the "mechanical" copyright. It's a copyright on the physical product. A CD, cassette, and 8-track tape of the same recording each has its own (P) copyright. A product made from a modified master is a new product. The music is protected by a different copyright, and it's the same music no matter what the medium it's delivered on.

 

I believe that a downloadable file is considered media, so even if a re-master never makes it to CD, it can still get its own mechanical copyright.

[Anderton]

So does YouTube have a mechanical copyright because a streaming video is a new product, and they re-mastered it via data compression so the material could fit a particular physical medium?

[MikeRivers]

So does YouTube have a mechanical copyright because a streaming video is a new product' date=' and they re-mastered it via data compression so the material could fit a particular physical medium?[/quote']

 

Probably, but who cares? There's no money in it for them since people don't pay them to watch the videos. To be sure, ask your IP lawyer. Then ask another IP lawyer.

 

 

[Anderton]

 

Probably, but who cares? There's no money in it for them since people don't pay them to watch the videos.

 

But YouTube has an agreement where they pay some publishers in a sort of ASCAP-like "blanket royalty" approach. Maybe YouTube can claim they own the mechanical copyright and charge record companies for the right to promote the record companies' videos. It's a beautiful thing.

 

 

[AlamoJoe]

Ok I got a question. A couple of years ago, I uploaded a cover I did of The Stones "Sympathy For The Devil" to SoundCloud on my page there. I posted it as free to download. Now, my version is considerably different than The Stones version. The only commonalities are the basic chord structure and the lyrics. Since I didn't throw this out there for money, I wasn't worried about paying anyone anything. 651 plays over two years ain't exactly burning up the charts and taking food from Mick and Keith's mouths.

But there was never any doubt in my mind who owned the song.

 

I don't for the life of me see how someone could remaster or remix a song and then claim a piece of the pie. It seems patently immoral and should be illegal.

 

How is it that it is not?

 

Sadly enough for me...Of the 28 tracks I have on SC, only 4 are covers..."Sympathy" is my most played track...By hundreds of plays. I shoulda never tried writing songs and just tried to be in a cover band.

 

[nat whilk II]

Ok I got a question. A couple of years ago, I uploaded a cover I did of The Stones "Sympathy For The Devil" to SoundCloud on my page there. I posted it as free to download. Now, my version is considerably different than The Stones version. The only commonalities are the basic chord structure and the lyrics. Since I didn't throw this out there for money, I wasn't worried about paying anyone anything. 651 plays over two years ain't exactly burning up the charts and taking food from Mick and Keith's mouths.

But there was never any doubt in my mind who owned the song.

 

I don't for the life of me see how someone could remaster or remix a song and then claim a piece of the pie. It seems patently immoral and should be illegal.

 

How is it that it is not?

 

Sadly enough for me...Of the 28 tracks I have on SC, only 4 are covers..."Sympathy" is my most played track...By hundreds of plays. I shoulda never tried writing songs and just tried to be in a cover band.

 

 

Your version is an unauthorized version - you've got nothing there at all. If by chance you made any money off of it, you'd be at the mercy of the Stones' legal department, totally. Remember The Verve and how they got ripped up by the Stones in legal proceeding for sampling part of an orchestral version of "The Last Time"?

 

The phrase used in the original post - "a remixed song is a new song" is bit misleading. Or maybe better characterized as a bit incomplete.

 

It goes like this (this is mostly like the case in the article, but I've changed it a bit to make the concepts take less time to explain)

 

I write a song. I own the song and have copyright. I record my song in three versions. Each one of those versions is a separate "sound recording" that deserves copyright protection. I make a bunch of money. Anyone who broadcasts my "sound recordings" has to pony up to me. Anyone who covers my songs has to pony up to me. Anyone who makes a copy of my "sound recordings" has to pony up to me. Anyone who samples or borrows too much from my song or from my sound recordings - well, we have to go to court to figure out if they sampled enough or borrowed enough to make it a violation of my rights. Like My Sweet Lord, et al.

 

So forty years go by, I've been rich from these songs and the related recordings, but I've pissed it all away and the royalties are drying up, and also there's child support to pay for a few dozen kids in eight states. Big Corp comes by and says, "hey Bub, we want to remaster your old material and re-issue it all in a fancy box set of CDs with photos and stuff. Let's work out a deal."

 

So we draw up a contract - the remastering gets done, the CDs issued, and the sales start coming in. The terms are this - I get some upfront money and a percentage of future sales. Big Corp, 'tho, actually owns the remastered versions, not me, but I don't care as I get a piece of the action regardless. I still own the original tapes and the songs and my previous "sound recordings". I authorized all this, I got my negotiated deal. I resume my expensive bad habits.

 

Couple of years on, I hear my songs being streamed all over the place. My songs! I haven't been paid anything for all this new-fangled streaming of my songs! I want the royalties! So I crank up my lawyers - they say, "yeah mon, let's go after them bistuds!".

 

In Court, the lawyers for the streaming services pull this out of their hat - they say, "we did not stream any of this man's sound recordings. We streamed remastered versions owned by Big Corp."

 

We say, "what difference does that make? According to the Copyright Office guidelines, those were just perfunctory digitizations with a bit of noise reduction, maybe an EQ twiddle here and there - they are still my sound recordings, basically."

 

But in private my lawyers are sweating and saying, "well....if the judge rules that enough was done in the remastering process to merit copyright protection, the remastered songs become new "sound recordings" that you don't own - Big Corp owns them, remember? Now if your old "sound recordings" were played, then you'll be in business." So the forensic experts do their thing, and they determine that none of the streamed songs were your old sound recordings. So you are left high and dry.

 

Now I should have got myself worked into the deal, that if someone broadcasts the remasters, I should get a piece of the pie. But I didn't. My lawyers never hinted to me that the remasters could actually have rights as due to a separate "sound recording". I can fire my lawyers, for all the good that'll do me.

 

I'm still in possession of all my original rights - to my song (I haven't sold that at least) and to my old sound recordings(if anyone broadcasts them.) And I still get a cut for all the sales of the remasters. But I have no rights to license out the remasters and collect broadcasting royalties as I don't own them. They have copyright all by themselves, and Big Corp gets all the broadcasting royalties.

 

Now, I could certainly remaster my old tapes again and work out a new distribution deal with some other company, this time doing it the smart way and keeping ownership of the new remastered sound recordings. But first, my lawyers have to check and see if my contract with Big Corp hogties me from doing so....which it probably does as they are smarter at all this than me and my lawyers.

 

Does that help clear all this up some? And anyone who can improve on my understanding, I'm teachable.

 

nat whilk ii

[AlamoJoe]

Actually Nat...That really did get it in my head.

Thanks!

You musta been breathin this good Texas air long enough to talk sense to my dumbass!

[MikeRivers]

You didn't have a good enough lawyer when you signed up with Big Corp. You still own the copyright to the words and music. You have a right to collect royalties. Your publisher should be seeing that royalties are collected through your friendsly local Performing Rights Organization. It won't be much, and it might take years before the rules are well enough defined so they know where the money is coming from and how much it is.

 

Maybe by the time you die, you can afford to be buried in a better suit.