As most people are well aware, a variety of copyright and trademark disputes have prevented the online distribution of the most valuable catalogue of musical recordings known to humanity — viz., the songs of the Beatles, whose value in the online marketplace surely exceeds a billion dollars. So imagine everyone’s surprise when the online seller Bluebeat.com began selling remastered Beatles tracks for $0.25 each a couple of weeks ago. Four for a buck!! Christmas in July (er – October, anyway)!
Alas, it was not to be – or at least not to be for too long. Bluebeat.com had not, in fact, beaten the industry giants like iTunes and Amazon.com to the rights to the Beatles’ songs. Instead, it claimed the right to distribute the songs without any permission from the copyright holders because the songs had been re-recorded using the technique of “psycho-acoustic simulation,” described by Hank Risan, head of Media Research Technologies (owner of the Bluebeat site) as “”my synthetic creation of that series of sounds which best expresses the way I believe a particular melody should be heard as a live performance.” Risan described the technique to the LA Times this way:
“Make a single copy. Analyze it. Destroy it. Create a new simulation based on parametrics of sound. You’ll be shocked at how the brain, in terms of its perceptual coding in the central nervous system, turns these sounds into electrical impulses, which then affect your mood, your cognizance, etc. Pyschoacoustic simulation exploits aspects of perception that are not present in the original work. It’s an art. The first simulations we did were awful. It’s an art. It’s not a copying at all.”
Uh-uh. Nice try. The copyright holders were not amused — EMI and Capitol Records, among others, rushed into federal court and, on November 9, obtained a temporary restraining order against Bluebeat forbidding any further distribution oof the Beatles’ songs. The problem for Bluebeat is not simply that “psycho-acoustic simulation” sounds like a crock of nonsense — people who heard the recordings being distributed claim that they sound exactly like the Beatles’ originals. The problem is that even if it’s not a crock of nonsense, there’s still an obvious copyright infringement in what Bluebeat is doing. Each of the Beatles’ recordings, like virtually all recorded music, contains two separate copyrighted works: the “musical work” (i.e., covering the song itself, music and lyrics) and the “sound recording” (covering the actual sounds placed on tape by the performers). Now, even assuming that psycho-acoustic simulation is a real technique that creates new sounds expressing the underlying musical work, that would just mean that distribution of the recordings wouldn’t infringe the sound recording copyrights; you’re allowed, under US law, to re-create the sounds of a recording and avoid infringement liability to the owner of the sound recording copyright. But there’s still the musical work copyright to consider, and there’s no argument on the planet that is going to help Bluebeat avoid infringement liability on that score.
Too bad, I guess – along with maybe 200 million or so others, I’m still waiting for those classic tunes to make it to iTunes or the equivalent. Guess I’ll just have to find my old LPs and start ripping . . .
[Thanks to Ed Butkovitz and Jerry Lewis for the pointer]