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Remastering doesn’t always create a new copyright, appeals court says in pre-1972 royalties case

By | Published on Wednesday 22 August 2018

CBS Radio

Remastering a recording doesn’t automatically create a new copyright, America’s Ninth Circuit court of appeal has ruled. Which means that – if it turns out there’s been a general performing right for sound recordings hidden in Californian law all these years – then golden oldie radio stations based there should have been paying royalties to recording artists and record companies. And claiming that they only played more modern remasterings of those golden oldies won’t help said radio stations.

The Ninth Circuit ruling relates to the ABS Entertainment v CBS Radio case, which was kind of a mid-season spin off from all the legal shenanigans Stateside around pre-1972 sound recordings. Some of those legal shenanigans continue to work their way through the courts, even as Congress attempts to solve the issue via the Music Modernization Act.

A speedy recap. For complicated reasons – chiefly that American copyright law is weird – sound recordings are only protected by US-wide federal copyright law if they were released after 1972. Sound recordings released before 1972 are protected by state-level copyright laws, or state laws that perform some of the functions of copyright law.

Elsewhere in American copyright law being weird, there is no general performing right for sound recordings under the federal copyright system. Which means AM/FM radio stations don’t have to pay any royalties to recording artists and record companies when they spin some tunes. However, there is a digital performing right, which means that satellite and online radio services do pay royalties, usually via collecting society SoundExchange.

Many digital services that have to pay those royalties – including satellite radio firm Sirius and personalised radio set-up Pandora – have argued that because the digital performing right comes from federal law, the royalty obligation only applies to recordings released since 1972. Which means they can play as many golden oldies as they like without paying any money whatsoever to artists and labels.

Many artists and labels, however, did not concur. Which posed the question, what do state-level copyright laws say about performing rights on sound recordings? The answer is generally very little, although Sirius and Pandora pointed out that AM/FM radio stations have never paid royalties to artists and labels on pre-1972 tracks, which suggests there is no general performing right. And there certainly isn’t a specific digital performing right.

Various lawsuits followed, the highest profile led by Flo & Eddie, who enjoyed success in the 1960s as part of The Turtles. Different courts in different states reached different conclusions. In California a judge decided there probably was a general performing right for sound recordings there, and therefore Pandora and Sirius should have been paying royalties to artists and labels. Various legal settlements followed, although the state’s Supreme Court has now been asked to rule on the matter once and for all.

But here’s the thing. If it turns out there has been a general performing right for sound recordings under Californian law all this time, why haven’t AM/FM radio stations been paying royalties to artists and labels whenever they play pre-1972 recordings? Because they should have been. It was on that basis that music firm ABS Entertainment, which owns old recordings by Al Green among others, sued American broadcaster CBS Radio.

The lawyers at CBS came up with a clever ruse when defending themselves in that lawsuit. The broadcaster said that when its stations play records that were originally released in the 1950s and 1960s, it always plays remastered versions of those tracks. A new copyright was created with the remastering process, CBS then argued. And given the remastering happened after 1972, those recordings are protected by federal law.

The remaster-to-reboot-the-copyright trick has long been employed by the music industry. Whenever famous recordings are about to come out of copyright, you remaster the tracks, take the originals away from retail, and replace them with the remastered works that now enjoy a whole new copyright term. People can still use the original now public domain recordings without licence, but it’s hard to get hold of them.

Quite how much remastering is required before you can say a new copyright has been created is debatable. And that debate was at the heart of the ABS v CBS case.

The music company argued that in most cases the sound engineers doing the remastering just tweaked the balance and loudness, which were mere mechanical changes that were insufficient to create a new copyright. But at first instance, the judge bought CBS’s remastering ruse and threw out ABS’s case without getting into the tricky nitty gritty about whether or not AM/FM radio stations should pay royalties on pre-1972 sound recordings.

Now the Ninth Circuit appeal court has rejected the lower court’s ruling on the remaster-to-reboot-the-copyright point. The appeal judges aren’t saying that a remaster can’t create a new separate work protected by a new separate copyright. They are just saying the act of remastering in itself doesn’t necessarily mean a new copyright has been created.

According to Reuters, one of the judges, Richard Linn, stated that: “A digitally remastered sound recording made as a copy of the original analogue sound recording will rarely exhibit the necessary originality to qualify for independent copyright protection”.

Actually the judge in the lower court didn’t say that every remaster would automatically constitute a new copyright. But the appeals court ruling seems to set the bar higher for just how much tweaking is required in the remastering process for a new copyright to come into play. Either way, the case has now been sent back to the lower court for reconsideration. Meanwhile legal reps for ABS said the new judgement “completely vindicates our clients”.

Although the appeals court ruling favours ABS’s arguments, the dispute with CBS still ultimately depends on what the Californian Supreme Court decides regarding the general performing right for sound recordings in the state.

Meanwhile, in Congress, the Music Modernization Act seeks to end the pre-1972 debate once and for all by saying that the digital performing right introduced by federal copyright law applies to all recordings still in copyright, oblivious of release date.

Though, even if and when that goes through, ABS could still argue that if there is a general performing right on sound recordings in California and therefore it should be getting royalties from CBS whenever its stations play 1950s and 1960s tracks, in addition to any royalties it would definitely be due from Sirius and Pandora on the back of the MMA.

Attempts to force AM/FM radio stations in America to pay royalties across the board to artists and labels – as their counterparts do in most other countries – are not part of the MMA. Mainly because of concerns that including an AM/FM radio royalty in those proposals would have caused the whole MMA to fall down, given the continued power of the broadcast lobby in Washington.