Digital remastering doesn’t create new copyright [USA]

Remastering music involves taking old songs in an analog format (such as found on vinyl) and digitally improving their quality for a re-release. There has been controversy up until now as to whether remastering constitutes the creation of a new copyright.

The 9th Circuit Court of Appeals has reversed a lower court ruling that basic digital remastering of pre-1972 sound recordings created a new sound recording copyright.

In the USA federal copyright law only covers sound recordings released after 15 February 1972. Consequently, sound recordings made prior to this fell into a grey area and were vulnerable to being used without the need to pay royalties.

The original case involved music owners claiming that CBS Radio (‘CBS’) had misappropriated their rights under state laws. CBS responded saying that it was performing a remastered version of the original vinyl record and the remastered version was itself a copyright protected work and CBS owned the copyright in it. The 2016 ruling by a lower court stated that remastering introduces substantially new elements into the recording, making it a brand new work.

On appeal it has been held that remastered sound recordings, despite possibly sounding better, are not the same thing as engaging in creative decisions that substantively change the work.

“It should be evident that a remastered sound recording is not eligible for independent copyright protection as a derivative work unless its essential character and identity reflect a level of independent sound recording authorship that makes it a variation distinguishable from the underlying work.”

Note that the court left the door open admitting that a remastered sound recording may be eligible to be considered as a fresh copyright but “a digitally remastered sound recording made as a copy of the original analog sound recording will rarely exhibit the necessary originality to qualify for independent copyright protection.” [13]

The original decision was always problematic, not least that by continually remastering a sound recording, the owner could effectively create a perpetual copyright.

The case now goes back to the district court to determine how much CBS may owe the songs’ authors in licensing fees.

There are a string of lawsuits filed by owners of pre-1972 recordings to enforce copyrights. This decision will provide some much needed guidance in what remains a somewhat grey area.

Links:

ABS Entertainment Inc v CBS Corp et al (20 August 2018)

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