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Al Green label asks judge to reject CBS Radio’s remaster defence in pre-1972 case

By | Published on Monday 11 April 2016

CBS Radio

The label suing CBS Radio over pre-1972 sound recordings last week urged a judge to dismiss one of the broadcaster’s defences in the case, an argument based on a classic music rights debate: does a remaster of a sound recording create a new copyright?

As previously reported, this dispute began with the US record industry’s fight with Pandora and Sirius over whether or not online and satellite broadcasters needed to pay royalties to record companies for airing pre-1972 recordings. Federal law in America says online and satellite radio services do need to pay royalties, whereas AM and FM stations do not. But federal law only applies to sound recordings released since 1972.

Pre-1972 recordings are protected by state copyright laws which make no distinction between online and traditional radio. Because AM/FM stations have never paid royalties when they play golden oldies, Pandora and Sirius argued they shouldn’t have to either. But test cases in California and New York said that there was likely a general performing right as part of the sound recording copyright under those states’ laws, so that Pandora and Sirius did have to pay royalties on oldies after all.

As state law makes no distinction between AM/FM and online radio, if Pandora and Sirius have to pay royalties on pre-1972 recordings, then so should conventional radio stations. Like those owned by CBS Radio. But no AM/FM radio station in the US has ever paid royalties to record companies, for pre or post 1972 catalogue.

ABS Entertainment, which owns old recordings by Al Green, among others, is testing all this by suing CBS Radio for unpaid royalties on pre-1972 tracks. The media firm responded to the litigation last year, partly by arguing against ABS’s interpretation of state level copyright law, but also – just in case that argument fails – by claiming that the versions of 1950s and 1960s tracks its stations play have all been remastered since 1972, so should be covered by federal and not state law.

ABS responded to that latter argument last week, urging the judge to reject it. According to Law360, reps for ABS said in a statement: “Remastering sound recordings from one format to another, along with mechanical processing to optimise the recording for the new format, does not convert a pre-1972 sound recording into a post-1972 sound recording”.

Calling this particular CBS defence “legally flawed”, ABS then noted that if a mere remaster creates a new copyright, then the record industry “could extend copyright protection indefinitely by continuing to re-master a work into new formats”. Because, of course, each time a new copyright is created, a new copyright term begins (95 years in the case of the US sound recording copyright).

Now, while it is true that the remaster thing is a sneaky technicality for CBS to employ in its defence, there is the issue that some in the record industry are actually hoping that they can “extend copyright protection indefinitely by continuing to remaster a work”. Which is why super-duper remastered versions of the biggest hits are often put out just before the copyright term of the original version expires.

This is a grey area in copyright law, the debate being how much rejiggery has to occur in the re-master for a brand new sound recording copyright to have been created. ABS’s argument, therefore, doesn’t necessarily conflict with the wider record industry’s grand plan to create new copyrights through re-mastered releases, in that the music firm’s main argument is that CBS is claiming that the touching up that occurs when a label re-releases a recording on a new format is sufficient to create a new copyright, whereas most labels would agree the remastering should be more substantial than that to claim a new protected work.

It remains to be seen how the judge responds on this issue. Though, ironically, if the record industry is successful in securing a general performing right for sound recordings in US federal law – which it is currently lobbying for – it would be the labels arguing that their golden oldie tracks had been re-mastered so were still in copyright, whereas the broadcasters would be crying foul over such claims.