CMU Daily 22.08.18: Remastering doesn't always create a new copyright appeals court says, Nicki Minaj and Future cancel co-headline tour

Remastering doesn't always create a new copyright, appeals court says in pre-1972 royalties case
Remastering a recording doesn't automatically create a new copyright, America's Ninth Circuit court of appeal has ruled. Which means that - if it turns out there's been a general performing right for sound recordings hidden in Californian law all these years - then golden oldie radio stations based there should have been paying royalties to recording artists and record companies. And claiming that they only played more modern remasterings of those golden oldies won't help said radio stations.

The Ninth Circuit ruling relates to the ABS Entertainment v CBS Radio case, which was kind of a mid-season spin off from all the legal shenanigans Stateside around pre-1972 sound recordings. Some of those legal shenanigans continue to work their way through the courts, even as Congress attempts to solve the issue via the Music Modernization Act.

A speedy recap. For complicated reasons - chiefly that American copyright law is weird - sound recordings are only protected by US-wide federal copyright law if they were released after 1972. Sound recordings released before 1972 are protected by state-level copyright laws, or state laws that perform some of the functions of copyright law.

Elsewhere in American copyright law being weird, there is no general performing right for sound recordings under the federal copyright system. Which means AM/FM radio stations don't have to pay any royalties to recording artists and record companies when they spin some tunes. However, there is a digital performing right, which means that satellite and online radio services do pay royalties, usually via collecting society SoundExchange.

Many digital services that have to pay those royalties - including satellite radio firm Sirius and personalised radio set-up Pandora - have argued that because the digital performing right comes from federal law, the royalty obligation only applies to recordings released since 1972. Which means they can play as many golden oldies as they like without paying any money whatsoever to artists and labels.

Many artists and labels, however, did not concur. Which posed the question, what do state-level copyright laws say about performing rights on sound recordings? The answer is generally very little, although Sirius and Pandora pointed out that AM/FM radio stations have never paid royalties to artists and labels on pre-1972 tracks, which suggests there is no general performing right. And there certainly isn't a specific digital performing right.

Various lawsuits followed, the highest profile led by Flo & Eddie, who enjoyed success in the 1960s as part of The Turtles. Different courts in different states reached different conclusions. In California a judge decided there probably was a general performing right for sound recordings there, and therefore Pandora and Sirius should have been paying royalties to artists and labels. Various legal settlements followed, although the state's Supreme Court has now been asked to rule on the matter once and for all.

But here's the thing. If it turns out there has been a general performing right for sound recordings under Californian law all this time, why haven't AM/FM radio stations been paying royalties to artists and labels whenever they play pre-1972 recordings? Because they should have been. It was on that basis that music firm ABS Entertainment, which owns old recordings by Al Green among others, sued American broadcaster CBS Radio.

The lawyers at CBS came up with a clever ruse when defending themselves in that lawsuit. The broadcaster said that when its stations play records that were originally released in the 1950s and 1960s, it always plays remastered versions of those tracks. A new copyright was created with the remastering process, CBS then argued. And given the remastering happened after 1972, those recordings are protected by federal law.

The remaster-to-reboot-the-copyright trick has long been employed by the music industry. Whenever famous recordings are about to come out of copyright, you remaster the tracks, take the originals away from retail, and replace them with the remastered works that now enjoy a whole new copyright term. People can still use the original now public domain recordings without licence, but it's hard to get hold of them.

Quite how much remastering is required before you can say a new copyright has been created is debatable. And that debate was at the heart of the ABS v CBS case.

The music company argued that in most cases the sound engineers doing the remastering just tweaked the balance and loudness, which were mere mechanical changes that were insufficient to create a new copyright. But at first instance, the judge bought CBS's remastering ruse and threw out ABS's case without getting into the tricky nitty gritty about whether or not AM/FM radio stations should pay royalties on pre-1972 sound recordings.

Now the Ninth Circuit appeal court has rejected the lower court's ruling on the remaster-to-reboot-the-copyright point. The appeal judges aren't saying that a remaster can't create a new separate work protected by a new separate copyright. They are just saying the act of remastering in itself doesn't necessarily mean a new copyright has been created.

According to Reuters, one of the judges, Richard Linn, stated that: "A digitally remastered sound recording made as a copy of the original analogue sound recording will rarely exhibit the necessary originality to qualify for independent copyright protection".

Actually the judge in the lower court didn't say that every remaster would automatically constitute a new copyright. But the appeals court ruling seems to set the bar higher for just how much tweaking is required in the remastering process for a new copyright to come into play. Either way, the case has now been sent back to the lower court for reconsideration. Meanwhile legal reps for ABS said the new judgement "completely vindicates our clients".

Although the appeals court ruling favours ABS's arguments, the dispute with CBS still ultimately depends on what the Californian Supreme Court decides regarding the general performing right for sound recordings in the state.

Meanwhile, in Congress, the Music Modernization Act seeks to end the pre-1972 debate once and for all by saying that the digital performing right introduced by federal copyright law applies to all recordings still in copyright, oblivious of release date.

Though, even if and when that goes through, ABS could still argue that if there is a general performing right on sound recordings in California and therefore it should be getting royalties from CBS whenever its stations play 1950s and 1960s tracks, in addition to any royalties it would definitely be due from Sirius and Pandora on the back of the MMA.

Attempts to force AM/FM radio stations in America to pay royalties across the board to artists and labels - as their counterparts do in most other countries - are not part of the MMA. Mainly because of concerns that including an AM/FM radio royalty in those proposals would have caused the whole MMA to fall down, given the continued power of the broadcast lobby in Washington.

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Labels want ISPs to be "de facto copyright enforcement agents", says ISP
As we prepare for take two of the high profile BMG v Cox Communications safe harbour case in America, another US net firm has accused the record industry of trying to make internet service providers their "de facto copyright enforcement agents". That claim has been made by Grande Communications which is seeking summary judgement in its favour in a copyright infringement dispute with the major labels.

The music industry has long wished that internet service providers would do more to monitor and limit piracy on their networks. ISPs are generally protected by the pesky copyright safe harbour, which means they can't be sued when their customers use their networks to distribute content without licence. Providing, that is, they provide some tools via which copyright owners can have infringing content removed.

There have been various efforts to get the ISPs to introduce anti-piracy measures, sometimes by getting new anti-piracy laws passed, other times by seeking voluntary agreements with the net firms. The latter existed in the US for a time involving the more copyright friendly ISPs, which are usually those that also operate cable TV networks and therefore have a vested interest in movies and sporting events not being pirated.

Neither Cox nor Grande were part of that programme. BMG sued Cox arguing that it operated a deliberately shoddy policy for dealing with repeat copyright infringers among its customer base. Therefore, BMG said, Cox did not fulfil the requirements under the US Digital Millennium Copyright Act to qualify for safe harbour protection.

BMG won that case at first instance, though it was subsequently overturned on appeal because of a technicality. Hence a second court hearing is now pending in that case. Meanwhile, the wider US record industry sued Grande (and later Cox), basically presenting the same arguments as in the BMG litigation.

Earlier this month the record companies asked the court hearing its case against Grande to confirm through summary judgement that the ISP could not rely on safe harbour protection due to its rubbish systems for dealing with copyright complaints and repeat infringers.

In its filing, the Recording Industry Association Of America wrote: "Grande's chief defence to plaintiffs' case - [ie DMCA safe harbour] - fails as a matter of law. The undisputed record evidence is devastating to Grande and confirms that Grande cannot meet its burden of establishing its entitlement to the safe harbour".

Now Grande has filed its own legal papers seeking summary judgement in its favour and it wants the whole case thrown out. It's not the first time the ISP has tried to have the case dismissed, so many of the arguments in its latest submission are pretty familiar. They also echo many of the arguments previously presented by Cox in the BMG case.

A big part of Grande's filing takes issue with Rightscorp, the anti-piracy agency that is employed by many music rights owners in the US. It says that if anyone has a shoddy or rubbish system for monitoring copyright infringement it's Rightscorp, which means that ISPs cannot rely on the copyright complaints it submits.

As a result, it says, the labels haven't presented any evidence that its customers are actually liable for direct infringement. There would have to be some direct infringement in order to hold the ISP liable for so called secondary or contributory infringement. Though, on the off chance the labels do demonstrate that some direct infringing was occurring, the ISP then runs through various arguments as to why there still isn't a case for contributory infringement.

Grande declares: "This case is an attempt by the US recording industry to make internet service providers, or ISPs, its de facto copyright enforcement agents. Having given up on actually pursuing direct infringers due to bad publicity, and having decided not to target the software and websites that make online file-sharing possible, the recording industry has shifted its focus to fashioning new forms of copyright liability that would require ISPs to act as the copyright police".

"Plaintiffs' legal theories represent an absurd expansion of copyright liability", it adds. "In essence, plaintiffs want to require ISPs to terminate the accounts of subscribers based on nothing more than unsubstantiated and unverifiable allegations of copyright infringement".

Referring to the aforementioned Rightscorp, it goes on: "To further this effort, the recording industry enlists a third party to bombard ISPs like Grande with hundreds of thousands of such allegations per year - more than any ISP could ever reasonably investigate and attempt to verify, even if it had the practical ability to do so".

Laying into the anti-piracy firm further, it says: "These notices are sent by a company that shockingly does nothing to verify the registration or ownership of any of the songs for which it sends out millions of notices of infringement and collects monetary settlements. This puts ISPs in an impossible position: either terminate subscribers based on unverified allegations of infringement, or face litigation for the secondary infringement of thousands of copyrighted works. Fortunately, the copyright law simply does not and cannot allow for secondary liability in these circumstances".

Sticking it to the labels themselves a little more, the legal filing then says: "Plaintiffs' case against Grande is also riddled with fatal evidentiary flaws - there are almost too many to list". It then lists them. Before shouting: "These failures entitle Grande to summary judgment".

It remains to be seen how the judge responds to both sides' bid for summary judgements in their favour. The music industry feels that American case law is slowly starting to increase the obligations of safe harbour dwelling net firms, which is a welcome development given the review of safe harbour in Washington has been dragging. The labels will be hoping for success in the Cox and Grande cases to maintain that momentum.

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J-pop group Chai sign to Heavenly
Heavenly Recordings has signed J-pop group Chai. The band will release their first album for the label, 'Pink', in October.

Coinciding with the Heavenly deal, the band have released new single 'NEO', of which they say: "Everyone, if we could be exactly who we are, that would be great right? Worrying is normal you know? Complexes are individuality. Complexes are art. Kawaii is a never-ending journey!"

'Pink' is set for release on 12 Oct and Chai will support Superorganism on their upcoming tour of the UK and Ireland the same month. Listen to 'NEO' here.

Superorganism dates:

15 Oct: Bristol, SWX
16 Oct: Liverpool, Arts Club
17 Oct: Belfast, Limelight 1
18 Oct: Dublin, Academy
20 Oct: Glasgow, SWEG3
21 Oct: Sheffield, The Leadmilll
22 Oct: Leeds, Stylus
24 Oct: London, Shepherds Bush Empire
25 Oct: Manchester, Ritz
26 Oct: Cambridge, The Junction
27 Oct: Portsmouth, Pyramids Centre
28 Oct: Brighton, Concorde 2
30 Oct: Oxford, Academy 1

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Nicki Minaj and Future cancel co-headline tour
Nicki Minaj and Future have cancelled their upcoming co-headline tour, which was due to begin next month, in order to "re-evaluate elements of production".

The tour will now begin with the scheduled European dates next February, reaching the US next May - although American dates are yet to be confirmed. Due to scheduling conflicts, Future will not take part in the rescheduled North American shows.

In a video for fans on Twitter, Minaj explained: "This is all happening because I pushed my album back two months, and I just finished writing and recording literally hours before the album came out. So now I just simply don't have the time to rehearse and be on the road in time to give you guys the level of a show I need to give. [We] are working tirelessly to give you the best show of my life. I really apologise, but it'll be worth it".

The announcement came shortly after reports in the American press that low ticket sales could force the run to be pulled. The New York Post published an article claiming that ticket sales were extremely low, quoting a Live Nation source as saying that some venues had sold less than 10% of their capacity.

It also came after Minaj, as promised, used this week's edition of her Beats 1 radio show on Apple Music to rant about Travis Scott cheating her out of the number one spot her new album should have taken in the US album charts.

Scott's latest LP, 'Astroworld', remained at number one for a second week on the Billboard album chart this week, meaning Minaj's 'Queen' debuted at number two. Although both sold roughly the same number of physical copies and downloads, Scott beat Minaj on streams.

Minaj, of course, previously claimed in a series of tweets that Scott unfairly boosted his sales by giving away copies of his album with merch and concert tickets via the online store on his website. She then claimed that his girlfriend, Kylie Jenner, posting on Instagram about the tour gave him an unfair advantage - actually blaming their baby Stormi.

"I put my blood, sweat and tears in writing a dope album only for Travis Scott to have Kylie Jenner post a tour pass telling people to come see her and Stormi", she wrote.

Scott is not technically giving away albums with merch and concert tickets - instead he's been promising pre-sale access to tickets for his upcoming tour to people who buy albums and merch on his website. It's actually Minaj who has been bundling CDs with t-shirts. Regardless, she apparently remains very angry about her chart position, while also maintaining that she's not actually angry, despite going on and on and on and on about it.

"What we're not gonna do is have that Auto-Tune man selling fucking sweaters telling you he sold half a million albums, because he fucking didn't", she said on her Beats 1 show. "You stupid fuck. You got your fucking homeboy talking for you and you got your girlfriend selling tour passes. Stop it. Knock it the fuck off".

She went on: "When [Scott] comes along and sells a tour pass that has nothing to do with his fucking music and says he's sold more than Kanye West and Nas - no you fucking didn't, keep it the fuck real. I know I'm that bitch, I know I'm number one".

However, she added: "Having said that, none of this is some serious anger shit. No, we are in a time right now where black music is prospering. I'm so excited to see where rap has come from and where we are. But right is right and wrong is wrong".

Minaj also previously claimed that her bid for the number one spot was hindered by Spotify. The streaming firm, she said, had penalised her for premiering new tracks on Apple Music via her Beats 1 show. Spotify delayed 'Queen' going live by twelve hours, she claimed. Spotify has denied this. Still, as noted, Minaj did lose out on the number one position because of her streaming figures. Something that burns because, she claims, it was her who got streaming data added to the charts in the first place.

"You know how many bullets I took for you motherfuckers to get streaming to count on Billboard?" she said.

She then also lambasted artists for not reading the contracts they sign and not having "a clue what is happening" to their business behind the scenes. Which might not be relevant, though the advice that all artists should be on top of all the deals they sign is good.

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Julien Baker, Phoebe Bridgers and Lucy Dacus come together as Boygenius
Indie singer-songwriters Julien Baker, Phoebe Bridgers and Lucy Dacus have tired of the solo life and formed themselves a band, under the name Boygenius. They'll release their first EP in November and, possibly unable to quite get away from each having a whole thing to themselves, they have released three songs from it at once.

"When we met, Lucy and Phoebe and I were in similar places in our lives and our musical endeavours, but also had similar attitudes toward music that engendered an immediate affinity", says Baker. "Lucy and Phoebe are incredibly gifted performers, and I am a fan of their art outside of being their friends, but they are also both very wise, discerning and kind people whom I look up to in character as much as in talent".

All three artists are set to tour the US together in their solo guises in November, which is where the idea of putting out a joint record now came from. Although the original plan was just a single. Bridgers explains: "It seemed obvious to record a seven-inch for the tour ... when we got together, we had way more songs than we expected and worked so well together, that we decided to make a full EP".

The EP is set for release on 9 Nov. Here are three tracks form it, 'Stay Down', 'Me And My Dog', and 'Bite The Hand'.

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Hinds announce UK tour dates
Hinds have announced that they will tour the UK in November. The dates follow the released of the band's second album, 'I Don't Run', in April.

Here are the dates:

12 Nov: Portsmouth, Wedgewood Rooms
13 Nov: Manchester, Academy
14 Nov: Cardiff, The Tramshed
16 Nov: Liverpool Arts Club
17 Nov: Birmingham The Mill
19 Nov: Oxford, The Bullingdon Arms
20 Nov: Cambridge, The Junction
21 Nov: Southampton, Engine Rooms
23 Nov: Tunbridge Wells, The Forum
24 Nov: Leicester, Dryden Street Social
25 Nov: Nottingham, Rescue Rooms
27 Nov: Hull, Fruit
28 Nov: Edinburgh, The Caves
29 Nov: Leeds, The Church
1 Dec: London, Hackney Arts Centre
3 Dec: Sheffield, The Leadmill
4 Dec: Newcastle, Riverside

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Disclosure, Hudson Mohawke, Bauer & Miquela

Other notable announcements and developments today...

• Having released new track, 'Moonlight', on Monday, Disclosure put out another, 'Where Angels Fear To Tread', yesterday. If they think they're going to get into this column every day this week, I'll tell you now they've got another thing coming.

• Hudson Mohawke has released a parody EDM track titled 'Cell-by-date'. It was created for an episode of Sacha Baron Cohen's 'Who Is America' TV show, in which he pretended to be a performer called DJ 5olitary.

• Bauer has teamed up with virtual Instagram star I don't really understand Miquela for new single 'Hate Me'.

• Soft Cell have released their first new track for fifteen years, 'Northern Lights'. It'll appear on their new singles compilation, out next month, along with another new song, 'Guilty (Cos You Say You Are)'. It might also get an airing at their farewell show at the O2 Arena on 30 Sep.

• You Me At Six are back again with a new song called 'Back Again'. "'Back Again' is quite a departure for us sonically", says frontman Josh Franceschi. "We took some risks, we wanted to soundtrack people's weekends. It's a song, lyrically, about recovery, but not from vices. From feeling lost within yourself".

• Dan Le Sac released a new album earlier this month, called '63 Days', which I completely failed to tell you about. I'm telling you now though, cos it's really good.

• Bill Ryder-Jones has announced that he will release his new album, 'Yawn', on 2 Nov. Here's first single 'Mither'.

• Empress Of will release new album, 'Us', on 19 Oct. Here are two songs from it, 'Trust Me Baby' and 'Dreams'.

• We Were Promised Jetpacks have released new single 'Repeating Patterns'. Their new album, 'The More I Sleep The Less I Dream', is out on 14 Sep.

• Juanita Stein has released new single 'All The Way'. Her new album, 'Until The Light Fades', is out next week. She'll also play the Slaughtered Lamb in London on 3 Sep.

• Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.

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Pete Doherty sings (eats really fast) for his supper (breakfast)
Pete Doherty ate a really big breakfast yesterday. Huge it was. It was the Dalby Café in Margate's 'Mega Breakfast', and the Libertines guy stuffed it down his neck in under 20 minutes, meaning he got it for free.

How big can a breakfast be though? Well, this one consists of: four eggs, four rashers of bacon, four sausages, a quarter pound beef burger, some hash browns, a load of mushrooms, way too many chips, a few onion rings, a bit of bubble and squeak, baked beans or tomatoes (your choice), two slices of bread and a mug of tea or coffee. And it'll cost you £17.50 if you fail to eat it in the required time.

Doherty, who is currently renovating a hotel he and his bandmates own in Margate, sat down for the feast after "one hell of a weekend", café owner Mark Ezekiel tells the Isle Of Thanet News.

The musician chose a table outside to eat his meal, which is so large that it is served on a metal tray. Suspicious, Ezekiel says that he warned Doherty that he would be watched on CCTV and not to feed any of it to his dog to qualify for getting it for free.

Aghast, Doherty apparently responded, "I've paid £4.5k for that dog, I'm not going to feed him fried food".

Somewhere between ten and 20 people have completed the 'eat this big breakfast quickly' challenge since it was launched in 2003. The exact number is not known, as a leader board in the café recording the achievements of past speedy breakfast eaters was accidently wiped clean in 2010. Just six people have managed it since then though. The last in 2013, in a time of eighteen and a half minutes.

Doherty cleaned his plate in nineteen and a half minutes, only just scraping through. Apparently he made an early error that almost scuppered his chances. Ezekiel explains to Kent Live: "He wolfed down two thirds in six or seven minutes. Usually we get people who eat quite a lot at first, but then they hit a wall and can't go on anymore. He surprised everyone. He smashed it".

In the name of journalism, I would now go and take up the challenge myself and report on my own efforts, but I'm vegetarian. I will lobby the vegan café up the road to pump me full of grain and tofu though.

As well as planning to open their own hotel in Margate and headlining the final day of local festival Wheels & Fins, The Libertines also recently sponsored the town's football team. Their logo is now emblazoned across the chests of Margate FC's players.

The team's General Manager Deny Wilson recently told the BBC that he was "THRILLED" by the "pioneering partnership". Although the band are not the first to sponsor the team. They were sponsored by Bad Manners in 1996 - frontman Buster Bloodvessel also being a hotel owner in the town at the time. Bloodvessel's breakfast eating achievements are not known.

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