According to CBS, sound engineers have created entirely new works from pre-1972 recordings. But does that deserve an entirely new copyright?
Should pre-1972 ‘oldies’ recordings enjoy copyright protection? According to Florida’s Supreme Court, absolutely not. The recent state ruling was a huge win for internet radio platforms like Pandora and Sirius XM. And it struck a huge blow for artists like Flo & Eddie, aka ‘The Turtles’.
Yet, that won’t stop other pre-1972 cases from going forward. Now, one media giant has argued that remastered versions should be protected under federal copyright law. That is, with brand-new, ‘post-1972’ copyrights.
ABS v. CBS
Two years ago, ABS Entertainment filed three lawsuits in federal courts. The company sued Cumulus Media and Cumulus Broadcasting LLC, iHeartMedia Inc., and CBS.
According to ABS, all three had unlawfully streamed music on the internet. Each lawsuit claimed that the companies had failed to receive consent from ABS or licenses for songs recorded before Feb. 15, 1972 to stream the songs.
CBS successfully beat the lawsuit last year using a daring legal argument. The media giant claimed that they hadn’t broadcast the original analog recordings. Instead, they had broadcast remastered versions created decades later. One song, for example, featured extra reverb and played in a different key.
CBS argued that their remastered versions aren’t protected under state law. Thus, they wouldn’t have to pay for the works. US District Court Judge Percy Anderson sided with the media giant. ABS immediately filed an appeal.
So, how should US courts handle remastered versions of pre-1972 hits?
At a hearing last Thursday at the Ninth Circuit Court of Appeals, CBS once again argued that pre-1972 recordings don’t receive protection under federal copyright law. However, remastered versions do.
Since the media giant created the remastered versions, they can distribute the works as they see fit.
CBS attorney Robert Schwartz told the three-judge panel,
“These are not merely analog to digital transfers… The purpose of these recordings is not simply to make something as authentic or clear or clean. That’s de-clicking, de-hissing. That’s not what we’re dealing with here. The purpose of the remasters is to create something completely different.”
Yet, his argument didn’t convince the court. Circuit Judge Richard Linn doubted that the media giant had created something entirely new.
“But it’s the same sound recording.”
After Schwartz said that the remastered versions were produced “decades later,” Linn refuted the lawyer’s argument.
“It doesn’t have different musicians [and] it doesn’t have different artists.”
Furthering the media giant’s argument, Schwartz likened the remastered versions “as a painting.” Circuit Judge Marsha Berzon then posited the following question.
“You have the Mona Lisa, let’s assume it’s copyrighted for some reason and it’s very dirty. [If someone restores it], is that a new work?”
Asserting that US courts have upheld creative expressions in the past, Schwartz added,
“That’s what sound engineers do.”
No, remastered versions shouldn’t count as new works at all, says ABS.
Arguing for ABS, Robert Allen refuted Schwartz’s arguments. Allen said that Anderson, the judge who ruled in favor of CBS last year, found that “digital copies of sound recordings were subject to federal law.” However, Allen argued that the judge had “ignored a section of copyright law.”
“Every sound in every copy at issue embodied only sounds that were initially fixed prior to 1972.”
Thus, the lower court had failed to correctly “determine whether or not a derivative work was authorized and created.”
According to Allen, remastering a song shouldn’t qualify as copyright law, but patent law instead.
Questioning Allen’s reasoning, Berzon asked,
“Couldn’t you under some circumstance change the sound sufficiently through a remastering process that a lay person could hear?”
Yet, a sound change wouldn’t make a difference, replied Allen.
“In a remastering you could perhaps remix a recording to add a new a track that was recorded after 1972, then raise the issue about pre-72, post-72 in that recording.”
Federal copyright law, asserted Allen, makes it clear when a sound recording “is subject to federal law only or state law.”
The Supreme Court of California will soon rule on a case that gives pre-1972 song owners the right to perform in public. Referring to the upcoming ruling, Circuit Judge Paul Watford asked,
“Don’t we have to wait for the California Supreme Court to tell us whether you even have a right under state law?”
The case wouldn’t apply to ABS’ appeal, argued Allen. ABS’ initial complaint “involves redistributing recordings without permission,” not song playback.
Featured image by karol almeda (CC by 2.0)