Ruling Is Music To Industry's Ears

[mgraham333]

RULING IS MUSIC TO INDUSTRY’S EARS

New York Copyright Case Keeps Recordings Out of Public Domain

BY STEVE SEIDENBERG

In a precedent-setting decision, New York state’s highest court last week extended the scope of common-law copyright. The ruling gives a huge boost to those who own the rights to recorded musical performances—almost always large music companies, not the musicians who made the recordings.

The Court of Appeals’ groundbreaking April 5 decision held that rights to performances recorded before 1972 are protected under state common law, even after those recordings have been put on the market. The ruling, Capitol Records Inc. v. Naxos of America, No. 30, increases the duration of protection for a treasure trove of recorded music, keeping it out of the public domain until 2067. This benefits the companies that own the rights to all pre-1972 recorded performances and prevents others from releasing their own versions of these early recordings.

The ruling arises from a dispute over several classical music recordings that were made in England during the 1930s and recorded by Capitol Records’ parent company, now known as EMI Records Ltd. The performers involved signed over all their rights to these works to the company.

EMI’s copyrights to the performances had ended by 1990, because United Kingdom law states that rights to musical performances last for 50 years. The performances never received copyright protection under U.S. law because federal law only protects recordings of musical performances produced after Feb. 15, 1972.

Nevertheless, in 1996, an EMI subsidiary granted Capitol what purported to be an exclusive license to exploit these recordings in the United States. Capitol remastered the original recordings to improve their sound quality and sold these cleaned-up versions on CDs.

After the recordings had entered the public domain in England, a competing record company, Naxos, located copies of the original 1930s shellac recordings, made its own remastered versions and began selling them on CDs in the U.S. in 1999. Capitol sued, alleging, among other claims, that Naxos was liable for common-law copyright infringement under New York state law.

The federal district court in New York granted summary judgment to Naxos, holding that when the U.K. copyrights to the performances expired, EMI (and thus Capitol) had lost its intellectual property rights to the recordings. Capitol appealed the ruling to the New York City-based 2nd U.S. Circuit Court of Appeals, which found that the case raised unsettled issues under New York state law.

The federal appellate panel then certified three questions to the New York State Court of Appeals asking that court to decide whether EMI had any rights to the musical performances under New York’s common-law copyright. The state’s highest court unanimously found that EMI (and Capitol) still had common-law copyrights to these performances.

Common-law copyright traditionally has protected only unpublished works. In this case, the court concluded that the musical performances at issue were unpublished, even though they had been commercially sold to the public for decades.

"The New York court strained to reach this result," says Columbia University law professor June Besek, a co-chair of the Broadcasting, Sound Recordings and Performing Artists Committee in the ABA’s Section of Intellectual Property Law. Besek notes that in finding the performances were unpublished, "the court was muddling the distinction between publication of an underlying work [i.e., the musical composition] and publication of a musical performance."

Prior cases have found that a composition protected by common-law copyright is not considered published—which would cause it to lose this protection—just because a recording of the composition is put on the market. The New York court read those cases as concerning rights to musical performances, thus overlooking the fact that the rights to performances are different from rights to compositions.

EMI stated in a press release that it is "extremely pleased" with the court’s ruling. The company has good reason to be happy, because the ruling does far more than simply help EMI/Capitol Records win its suit against Naxos. Specifically, this ruling on common-law copyright effectively lengthens the duration of music companies’ rights to many popular works of the 1950s and 1960s. Consider, for instance, Elvis Presley’s 1954 hit song, "That’s All Right." The song’s composition is protected under federal law until 2049. The musical performance, however, will remain protected under New York’s common-law copyright for another 18 years. Not until 2067, when federal law pre-empts state protections for all recordings, will Presley’s recorded song finally fall into the public domain.

The case now goes back to the 2nd Circuit, which is expected to issue an order that reverses the district court’s decision on summary judgment and send the case back down for trial. However, the case may not come to trial anytime soon.

"The 2nd Circuit’s order will probably be appealable, so we could ask [the U.S. Supreme Court] for certiorari," says Naxos’ attorney, New York City IP lawyer Maxim Waldbaum. Naxos is seriously considering this option, Waldbaum says.

[j lee]

http://blog.mises.org/blog/archives/003476.asp

[RDK]

Whose music is it anyway?

By Norman Lebrecht / April 13, 2005

Pity the poor judges. Hardly a month passes without someone in a black gown having to lay down the law on matters so fluid they might be more fittingly served in a saloon bar. At stake is our access to musical heritage and unless some judge draws a line in the sand pretty soon we could all go blundering back to ignorance and deprivation.

Last week in Albany, the Court of Appeals of the state of New York ruled unanimously that old recordings could be issued on compact disc only by their original label. Sounds reasonable? Wait for the handcuffs.

Over the past decade we have enjoyed a renaissance in the appreciation of historic performances. Naxos, the impulse-buy classical label which sells discs at five pounds, dollars or euros the world over has been reissuing early recordings that had been long deleted by the music biz, which functions on a flow of hyped-up novelty. Ownership of these antiques was uncontested, their perceived value meagre.

Using mint exemplars from Yale University Library, Naxos restored to circulation the imposing sound of Rachmaninov in his own concertos and the more hesitant tones of Prokofiev at the piano. The proud voices of Elisabeth Schumann and Kirsten Flagstad found new admirers; the formative conductors Felix Weingartner and Willem Mengelberg returned to our shelves. These recordings had gathered dust for a generation. Some had never been transferred onto LP, let alone CD. Their restoration was revelatory.

So long as Naxos messed with esoterica, the major labels turned a deaf ear. But Klaus Heymann, the Hong Kong-based label’s German owner, was keen to prove a point. He encroached on such EMI memorabilia as Menuhin in the Elgar concerto, Artur Schnabel in the Beethoven sonatas and Casals in the Bach suites, which had never fallen out of print.

Suddenly, 50 years of mechanical copyright, which is the European norm, did not seem such a long time. Kathleen Ferrier, one of Decca’s all-time bestsellers, is out on Naxos. The debut operas of Maria Callas – I Puritani, Norma, La Sonnambula – are also there and Glenn Gould’s inimitable 1955 account of the Goldberg Variations will fall free come New Year. Callas still sells more CDs than any opera singer alive today and Gould’s icon has pervaded contemporary art and film. Naxos may have begun with educative intent but now it was peddling prime product.

EMI took the case to the US, where mechanical copyright is protected for 75 or 95 years at movie industry insistence. The victory won last week by its Capitol subsidiary has drastic implications. Even if copyright expires, the court ruled, common law can be applied to assert the rights of the original owner. That means, in effect that EMI regains perpetual control of all recordings all the way back to Edison.

Heymann is hoping to overturn the verdict at the US Supreme Court, but the process will be costly and long. EMI, triumphant, is returning to Albany to seek ‘substantial damages’ against Naxos and the destruction of its historical stock. It will also mount a massive lobbying campaign in Brussels to harmonise European copyright with US law, arguing that in an MP3 world rights protection must be universal. EMI bosses are absolutely gung-ho. Quite apart from securing the Callas jewelbox, the judgement protects the early Beatles releases from potential predators in eight years’ time.

The losers, apart from Heymann, are millions of listeners who regained access to treasures of the past only to have them locked away again. EMI promise to keep more oldies in circulation but, without competition from Naxos, prices will rise and the glories of past masters will be constricted to a moneyed minority.

That reversal could be compounded by a judgement expected imminently in London. In May last year, a small and rather beautiful record label, Hyperion, was sued by an academic, Dr Lionel Sawkins, who demanded royalties for recordings of music by Michel-Richard de Lalande. The once eminent French composer died at Versailles in June 1726 and cannot, even under New York appellate law, hold claim to any copyright.

Dr Sawkins, however, edited the modern edition of his score and claimed to have made enough of a contribution to be its beneficial owner. After a six-day hearing last year, Mr Justice Patten agreed that although Sawkins had not altered any of Lalande’s notes, his edition was ‘sufficiently original in terms of the skill and labour used to produce it.’

Hyperion is now awaiting a Court of Appeal decision, originally due this week but now postponed for a month. The case may ultimately hinge on the musical meaning of the word ‘realisation’. If Sawkins wins again, the case will cost Hyperion a million pounds, jeopardising its survival.

Musicians await the decision with trepidation. Without invading matters that are rightly sub judice, many Baroque practitioners have rallied to Hyperion’s side, praising the label for bringing the past to light by reviving the likes of Lalande who, the least of three fine composers at the Sun King’s court (Lully and Charpentier were the more prominent), might never had been rediscovered but for its advocacy.

They fear that if copyright in a long-dead composer were granted to a note picking editor, vast swathes of heritage might fall into private or corporate hands. The Austrian government could, for instance, by virtue of the manuscripts it owns, assert its legal writ over performances of Mozart, Beethoven and Brahms.

No-one envies the judges their headache for the field of copyright has become quagmire. What was once a simple acknowledgement of reward for creative effort has been complicated by such metaphysical concepts as ‘moral’ rights and intellectual ‘property’. Much of what is being argued in court strays beyond the original intention of legislators to balance the rightful authority of a creator with the need to allow the public proper access to the essentials of civilisation.

In an unrelated case in California, lawyers for various interests are trying to copyright the term ‘yoga’, restricting access to corporately sanctioned practitioners. There are passages in these court documents where the law is made to look like a braying ass.

That is what judges are there to stop. Whoever ends up owning what, the law must make common sense and must ensure that the protection of copyright does not block the public footpath to cultural enlightenment.

http://www.scena.org/columns/lebrecht/0504...historical.html

[BERIGAN]

So Mr. Nessa, what do you think about this????

[brownie]

A dissenting opinion by a French court this week.

From BBC News:

HALLYDAY LOSES RECORDING CLAIM

French rock singer Johnny Hallyday has had his bid to gain control of some 1,000 master copies of his songs rejected by a Paris appeals court.

The appeal court overturned an earlier decision that ordered Universal to hand back the valuable original recordings.

Hallyday, 62, had accused the label of exploiting him.

He will be bound to Universal until the end of 2005, producing one more album but will not be able to produce another album for any other label until 2007.

This is to ensure Universal has enough time to promote the album before Hallyday releases another one.

There was originally an agreement to record six albums with Universal until relations broke down.

Concert return

French icon Hallyday's back catalogue, dating back to 1961, continues to sell well in France, where he is considered one of the country's greatest singing legends.

Under the new agreement, Hallyday will be able to record new versions of his past hits with a different label.

He is planning a concert tour in 2006 to mark his 63rd birthday having taken a three-year break from performing live.

The most recent court ruling states these concerts can be recorded and marketed by another record label from 2007, but a fee would have to paid to Universal.

Universal appealed against returning the master recordings, arguing that to give Hallyday the rights to the tapes would set a "dangerous" precedent in the music industry.