Update to music remixing vs. remastering

In response to my last post on remixing versus remastering, Kevin Erickson of the Future of Music Coalition helpfully pointed out some further nuances in the distinction between the two.

In particular, he mentioned that changes in speed/tempo and addition of reverb can be part of a true remaster. For example: 1) additional reverb applied to the entire 2-track master mix of a song can help it sit better next to the other songs tracks on an overall album release; and 2) speed/tempo changes can be corrective where the original source tapes had recorded or played at the wrong speed (he cited The Cure’s “Bananafishbones” as a particular case of this–read to the bottom of this Wikipedia entry for the relevant sentence).

But we actually are both in agreement on the overall principle involved: a remaster should not change the artistic vision of the recording artist and producer.

And I agree with the nuances and examples he cites. Speed/tempo corrections and what I’ll call “buffering” reverb are fine when used to preserve (or get back to) the original vision. Further, I’d add, compression or expansion, signal amplitude change, overall EQ, and other changes that would allow the listener to experience a smooth succession of individual tracks in a compilation setting could fall well within the principle of remastering too.

My point that I think we both agree on is that given the judge’s ruling that the changes made in the “remasters” at issue in ABS v. CBS were enough to find new derivative works–coupled with his reference to different vocal tracks being used apparently from the raw track source–the overall effect of all these changes was likely more than that required to situate the songs together in a compilation in a new format as a pure remaster. So it is not about any particular technical change as a categorical matter–as if, e.g., any change in reverb always results in a remix rather than a remaster. Instead, it is the degree and intent/effect of the change. Does it make the song sound different to the reasonably sophisticated listener in a way not simply attributable to the format change?

While this might have been something that only concerned engineers and artists/producers in the past, the ABS v. CBS ruling makes it a central issue now for copyright owners, users, and policymakers too.

Does the ruling make all remasters derivative works provided there is any audible difference from the original master? I would hope not and I don’t interpret the decision to say that. Further many true remastering differences would only be perceptible to the most discerning listeners. The average listener will perceive it to be the same recording. And shouldn’t that be the point of a pure remaster for a new format?

In the original post, I pointed out that some “remasters” are enhanced or promoted as giving a different experience from the original for commercial or artistic reasons. Those may blur the line between remix and remaster. But the the conceptual difference remains. Where the artist or producer intends and authorizes a new experience in the remastered sound recording, then I think that warrants a derivate work sound recording right (albeit still subordinated to the sound recording right in the original tracks which of course are still preserved within the additional signal processing applied to them). But where no such difference is intended or authorized, then no new right should attach. And if the actual result that emerges from the remastering process is a different experience for the average listener, then it could create both copyright infringement as an unauthorized derivative work and breach of contract (assuming an express or implied license with clear enough terms).

About Sean O'Connor

Sean O’Connor is the Boeing International Professor at the University of Washington School of Law (Seattle). He is also Chair of the Center for Advanced Study and Research on Innovation Policy and Faculty Director of the Cannabis Law &B Policy Project. With a diverse background in music, technology, philosophy, history, business, and law, he specializes in legal issues and strategies for entrepreneurship and the commercialization of innovation in biotechnology, information technology, and new media/digital arts.
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