Remastering Copyright

It’s not often that a copyright owner denies owning a copyright in order to press a case for copyright infringement. But that’s essentially the position ABS Entertainment found itself in its legal fight with CBS Radio over the broadcaster’s on-air use of sound recordings made prior to 1972, when recordings came under federal copyright protection. And now a federal judge in California has ruled that ABS is stuck with the consequences of the copyright it never claimed (h/t THR, Esq.)

His_Master's_VoiceThe ruling, if it stands up on the expected appeal, is fairly dripping with implications for music and broadcasting industries (both over-the-air and digital), but also for the film and video industry that makes use of sound recordings in audiovisual works.

Pre-1972 sound recordings have been the focus of considerable controversy in recent years. Prior to 1972, sound recordings were not protected by federal copyright law; only the musical compositions embodied in those recordings were protected. But in 1971 congress updated the law to extend federal copyright protection to sound recordings made after February 15, 1972.

The law continued to exempt over-the-air broadcasters from having to pay public performance royalties to the owners of sound recordings, however (publishers and songwriters get paid), to the dismay of the record labels, on the ostensible grounds that airplay helped promote the sale of records and therefore record companies didn’t need performance royalties. (The real reasons had more to do with the power that broadcasters once wielded in Washington, DC, and in some measure still do.)

A subsequent update created a performance royalty for post-1971 sound recordings on “non-interactive” digital platforms (web radio) like Pandora but provided non-interactive streaming services with a compulsory license to use the recordings. Pre-’72 recordings, though, remained beyond the reach of the new federal rules.

In recent years, however, the owners of sound recordings have had some success bringing cases against broadcasters and streaming services in state courts by arguing that pre-’72 recordings are covered under state copyright laws, which in many cases provided a public performance right for sound recordings, and which were never pre-empted by federal law. The use of pre-’72 recordings by broadcasters and streaming services in states that have such laws, therefore, should still require a license and the payment of royalties.

That’s more or less what ABS Entertainment, which owns pre-1972 sound recordings by Al Green, Otis Clay and others, had in mind when it sued CBS Radio last year. But CBS offered up a novel theory in its defense. The actual recordings it used in its broadcasts were digitally remastered versions of the original, analog recordings, and therefore had to have been made after 1972, under federal copyright law, which provides an exemption from royalties for broadcasters.

The legal question before the court, then, became not the proper interpretation of California state copyright law but whether the audible differences between the digitally remastered versions and the original analog recordings, were sufficient, and sufficiently original, as to constitute a separately copyrightable work.

That left ABS in the awkward position of arguing that copyrights it likely would have owned in the remastered versions — by virtue of their being derivative works based on the pre-’72 analog originals it did own — were not valid, and therefore could not be covered by federal copyright law and its exemption for broadcasters.

The court largely accepted the testimony of CBS’ expert sound-engineer witnesses in concluding the changes made in the remastering process were sufficient to comprise an independent work of authorship, and that ABS, whether it liked it or not, owned new federal copyrights in the remastered versions used by CBS, exemptions and all.

Dr. Begault [an audio engineer hired by CBS] compared four factors between Plaintiffs’ Pre-1972 Sound Recordings and the version of those musical compositions which CBS had performed: timbre, spatial imagery, sound balance, and loudness range. Based on comparing these factors, Dr. Begault concluded that:

[T]he sound recordings of each of the performances that plaintiffs claim to own are not the sound recordings that CBS used. That is the case for all 57 of plaintiffs’ claimed songs whose recordings I compared. In other words, CBS did not use any version of the sound recordings that plaintiffs’ claim to own. Instead, CBS used different versions of those sound recordings. Based on the results of these tests, the versions that CBS has used are either: (1) “remastered” versions of the sound recordings plaintiffs claim to own; (2) remastered versions of previously-remastered, and thus different, versions of the sound recordings plaintiffs claim to own; or (3) a completely different performance than the sound recording plaintiffs claim to own (emphasis in original)…

Accordingly, the Court finds that on the record before it, Plaintiffs’ pre-1972 Sound Recordings have undergone sufficient changes during the remastering process to qualify for federal copyright protection.

Apart from the novelty of the legal arguments, the ruling raises a number of tricky questions for both copyright owners and users, including whether it creates an avenue for the endless extension of copyright protections by periodically creating “new” versions of a work. The court addressed that concern obliquely, in a footnote, calling it “unwarranted because the Court’s finding of copyrightable originality is based not on a mere conversion between formats, but on the original expression added by a sound engineer during the remastering process.”

In an era of endlessly mutable content, however, when nearly any work can be be remixed, remastered, reprocessed or restored, sorting out where to draw the line between copyrightable versions could get a lot more complicated.

Upconverting a movie to 4K may be “a mere conversion between formats,” but what if in the process and engineer does some color correcting or image sharpening? Would that be sufficiently original to claim a new copyright? If so, what sort of incentive does that create for the preservation of earlier versions?

This one is going to require a lot of chewing over by other courts before anything is settled.

Footnote: The case also provided an object lesson in the costs of poor record keeping in the music industry. The court acknowledged that a derivative work, such as a remastering, can only be made with the permission of the copyright owner. Presumably, in this case, the remasterings were done with the approval of ABS Entertainment or its predecessors in interest.

The court also stipulated that language in a contract granting a license to create a derivative work could limit the licensee’s right to create an independently copyrightable work. In this case, though, ABS had no record of any license or contracts covering the remastering. Nor, for that matter, was there any evidence that anyone had tried to register the remastered versions with the U.S. Copyright Office, although as the court noted, “copyright registration is irrelevant to the question of whether a valid copyright exists.”

Makes you despair of ever compiling a comprehensive database of rights ownership covering the first 90-0dd years’ worth of sound recordings.