Why ‘Mastered For iTunes’ Won’t Defuse a Copyright Time Bomb

From Gizmodo:

Next year, a time bomb embedded in the Copyright Act of 1976 starts to detonate, as valuable copyrights fall back into the hands of artists who decide that they would prefer to own their songs, rather than allowing their label and publisher to keep selling them.

Recordings released in 1978 will be up for copyright termination in 2013, even if artists legally sold those songs away decades ago. Recordings from 1979 fall into this category in 2014, and so on, over the years.

These are valuable copyrights, useful for licensing in movies, advertisements, and videogames in addition to being sold in iTunes and elsewhere. Wouldn’t it be convenient if the labels could devise a way to hang on to those sound recordings? After all, everyone from the guy behind “Funkytown” to The Eagles is lawyering up to take back songs sold to labels and publishers.

Indeed, Mitch Glazer, later hired as a lobbyist for the RIAA, gave the labels some grounds to keep these copyrights by adding a provision to the Copyright Act in 1999 that attempts to categorize sound recordings as “works for hire” made by musicians as employees of the labels. The U.S. Registrar of Copyrights objected strongly to the addition because it changed the law, rather than correcting an oversight. (Update: The provision was repealed [thanks, Eriq Gardner], although sources we’ve spoken with say the “works for hire” issue is still at play today.) Our courts – possibly the Supreme Court – will likely have to untangle the whole mess after artists start trying to get their songs back next year, with notices already being filed.

One magical option for the labels would be to create a new sound recording copyright for these songs – say, by remastering them for iTunes. It did seem a bit odd that Apple, after listening to audiophiles complain for nearly nine years about the sound quality of songs sold in iTunes, would unveil its “Mastered for iTunes” program the very year before these old copyrights started reverting. Could the labels’ ace in the hole be a plan to sell newly-copyrighted remasters while allowing the old and busted ones to revert?

After hearing from multiple lawyers and other sources (some who would not comment on the record), we’re convinced that Mastered for iTunes cannot allow record labels to defuse this copyright time bomb – even though movie studios have been granted new copyrights for colorizing black-and-white movies. As it turns out, the difference between the regular version of the song and the “remastered for iTunes” version is too small, from a legal perspective, to justify a new copyright (and with it another 35 years of label control). For a new copyright, a band would have to go farther than that – say, by recording a new version.

Continue reading the rest of the story on Gizmodo