The remastering of hits from the 1960s and 1970s has sparked legal debate as to whether such remastered tracks should enjoy new copyright protection, separate from that protecting the original work. The issue has been considered in numerous cases including a 2015 California case where Sirius XM settled with independent music labels by agreeing to pay $210 million in owed royalties for pre-1972 songs played on air. Music streaming giant Pandora faced a similar lawsuit in New York and was also ordered to pay royalties for pre-1972 songs.
Under US law, songs recorded prior to 1972 are not subject to Federal copyright laws but are instead subject to State laws which generally favour the artist– especially in New York and California.
In November 2017, a long-running dispute between CBS Radio (CBS) and ABS Entertainment (ABS) originally considered in 2016 (transcript) was appealed to the U.S. Court of Appeals for the Ninth Circuit reigniting the debate.
CBS, a broadcasting company and radio network operator who remastered tracks from that era, argued for such protections stating that the original owners cannot prevent the public performance of such songs. At first instance, ABS, the owners of the original tracks, and CBS, sat before a US District Judge on the issue of remastering pre-1972 songs to optimise them for digital transmission which required the tracks to be reengineered.
Prior to 1972, Federal copyright law did not confer copyright protection on sound recordings and California only granted creators of such sounds exclusive ownership rights to pre-1972 recordings.
ABS argued that, under Californian law, CBS owed royalties for playing newly remastered versions of their pre-1972 songs online. The court was asked to consider who owned the copyright given both parties claimed ownership.
Should derivative songs (as considered below) fall under the protection of the post-1972 law, CBS would be able to claim exclusive ownership over the expressive elements within the newly-remixed songs– in other words they would need not pay royalties. A change affecting the expressive elements of a song is construed widely, and can range from increasing the bass volume, to including a new instrument. Any such changes can potentially create a completely new and individual derivative work– i.e. the new song will have derived some of its elements from the original, underlying song.
ABS claimed pre-1972 songs are protected under State law and should not be radio broadcast by CBS without their permission. The company stated that the editing of music by sound engineers is merely mechanical and does not create sufficient originality to be protected by copyright. They pointed out that to accept such an argument would imply granting sound recordings continuous copyright over songs.
Conversely CBS argued that they were not performing the original recordings, but rather merely remastering versions of the songs. These versions, they argued, should be considered derivative works of the 1980s, rather than pre-1972 remastered songs, and therefore be subject to post-1972 Federal copyright laws.
At first instance, the District Court of California favoured CBS stating that ABS’s pre-1972 recordings had undergone considerable editing during the remastering process. The court noted that, for example, additional reverberation had been added, and that songs were played in different keys and at a faster tempo than the originals. In this instance the sound engineer had been creative, allowing the remastered versions to enjoy independent copyright protection.
ABS however appealed the case in November 2017 (hearing recording) arguing that:
- the remastered tracks should not be considered derivative works because merely improving the quality of the songs did not add anything new;
- even if the re-mastered tracks are considered derivative works, Federal law would only apply to the new elements and not the whole song because those sounds were fixed prior to 1972; and
- the remastered tracks replicate the original sound of the song– the test for derivative works, should be if the layperson can distinguish any audible differences.
CBS responded arguing that:
- their remastered tracks should be considered derivative works because they interpret the song in completely new ways– the test for derivative works should be whether the creator of the new work applied sufficient artistic creativity;
- the remastered tracks were not intended to create a clear original recording, but different tracks for a new modern audience. They pointed out that ABS agreed that the remastered tracks and the original recording on vinyl have substantial differences; and
- both Federal law and State law could apply to a single work, Section 301 of the Copyright Act explicitly states that Federal law should supersede State law, therefore songs that include both pre-1972 sounds as well as post-1972 sounds should be covered entirely by Federal law.
To further probe the arguments, Judge Berzon by way of a metaphor asked CBS if a cleaned-up version of the Mona Lisa would be considered the same work. CBS responded that if the painting were just cleaned up, it would not be different, but the introduction of a creative expression aimed to create a different-looking painting would be sufficient to create a derivative work. Judge Watford noted that the California Supreme Court first needed to decide whether and how State copyright applies in these circumstances. The debate continues…