A new court decision now allows anyone to extend recording copyrights indefinitely.
Last week, a federal judge ruled that CBS Radio didn’t have to pay additional royalties for songs released before 1972. The reason is that CBS Radio was that even though the songs in question were released before 1972, they were remastered after that date, making them post-1972 recordings. The court agreed, effectively moving the copyright start date forward with a remastering.
All of which means that anyone can now extend the copyright on recordings they control in the United States, theoretically forever.
Before we get into exactly how to accomplish this, let’s address why 1972 is such an important date in US Copyright law. Before 1972, federal law didn’t protect recording copyrights in the US, at all. Instead, a patchwork of state laws attempted to offer rights, or didn’t address the matter at all, which led to a complete mess for rights owners to navigate. Here in 2016, that situation raises the question of whether traditional broadcast radio stations enjoy an exemption on recording royalties for works created before 1972, which is something federal law grants. Currently, terrestrial radio stations don’t have to pay royalties for the use of recordings (but they do have to pay for publishing).
Enter ABS Entertainment, which controls the recording copyrights on a number of oldies tracks. Contesting the status quo, the company filed a lawsuit claiming that broadcast radio conglomerates like CBS Radio don’t enjoy exemptions against having to pay those royalties before that date. CBS Radio, in response, simply stated that they haven’t played anything created before 1972, because they only play remasters re-created after 1972.
A court agreed, with potentially massive implications for copyright law. Effectively, the court ruled that because remastering involves a significant alteration to the recording copyright, it’s a brand new copyright (with a brand new start date). Here’s the critical conclusion from the legal decision:
“The relevant question is whether CBS had the right to perform the remastered, post-1972 sound recordings. Under federal law, CBS has the right to perform post-1972 sound recordings on terrestrial radio without payment, and to perform them through digital platforms under a statutory compulsory license.”
Currently, US (federal) copyright law offers protection on recordings for the life of the author plus 70 years, or 95 years if owned by a company. Of course, an author who has passed away doesn’t have the ability to execute a remaster, but the author’s heirs can easily handle those details. Similarly, a company that owns the copyright enjoys the same rights under this decision, with or without the artist’s permission or involvement.
Of course, the next question is whether this decision stands. In a conversation following the ruling, music attorney Steve Gordon noted that the court forgot to consider important laws and precedents surrounding derivative works. Those are variations on a core recording copyright that introduce a complete menu of different rights. That could subject this decision to further scrutiny, with Gordon pointing to a possible overruling ahead.