LOS ANGELES, CA—The results of remastering are at the heart of a copyright case that could have repercussions throughout the media industry. Focusing on broadcast performance royalties and copyright, the United States District Court for the Central District of California made a decision on May 31, 2016 on whether a sound engineer’s remastering of a pre-1972 sound recording is entitled to federal copyright protection; the court ruled in the affirmative.
In the case, ABS Entertainment, Inc. v. CBS Corporation, et al., the plaintiff charged that CBS Radio must either pay performance royalties for broadcasting pre-1972 recordings by R&B artists including Al Green, Willie Mitchell and others, or else stop playing them. ABS was joined in the class action by Barnaby Records, Brunswick Record Corporation and Malaco Inc., who together represent original recordings by Andy Williams, the Everly Brothers, Jackie Wilson, The Chi-Lites, Mahalia Jackson and many others.
Traditionally, songs—music and lyrics—have long enjoyed federal copyright protection. But it was not until Congress approved the Sound Recording Act of 1971 that a fixed version of a song—a recording—was also protected by copyright. The bill became law on February 15, 1972. Any recording made prior to that date is subject to the copyright laws of the individual states.
In two recent cases, Flo & Eddie v. Sirius XM Radio and Flo & Eddie v. Pandora Media (currently on appeal before the Ninth Circuit), California state law has been interpreted as including an exclusive public performance right for pre-1972 recordings. U.S. District Court Judge Percy Anderson specifically instructed ABS and CBS not to address whether California state law protects that exclusive right.
At issue in ABS Entertainment, Inc. v. CBS Corporation were more than 100 pre-1972 songs that were determined to have been played over the past four years from CBS’s digital audio library, which it refers to as Radio 2.0. CBS asserted that it “only broadcast digitally re-mastered or re-issued recordings which were created after February 15, 1972; and that their broadcast of such works is governed by federal copyright law rather than California state law.”
For a remastered song to be eligible for new and separate copyright protection, it would need to comply with the definition of a derivative work. Both parties agreed to take guidance from a U.S. Copyright Office Circular that states that a “derivative sound recording is one that incorporates some preexisting sounds that were previously registered or published, or sounds that were fixed, before February 15, 1972. The preexisting recorded sounds must have been rearranged, remixed, or otherwise altered in sequence or character, or there must be some additional new sounds.”
But the parties differed in their interpretation of the circular. ABS stated that the remastered songs publicly performed by CBS “were simply digital conversions optimized for the digital formats using only mechanical processing.” Since those digitally remastered songs had not been “remixed, edited, re-arranged, altered or modified with new sounds,” they were not eligible for federal copyright protection as a derivative work, as CBS contended. CBS argued that, according to the circular, a derivative sound recording need only be “otherwise altered in … character” based on “adjustments of equalization, sound editing, and channel assignment.”
In order to prove that its remastered versions meet the requirement of containing “at least a minimum amount of original sound recording authorship” to be eligible for separate copyright protection, CBS offered testimony from two expert witnesses. The first, William “Bill” Inglot, who previously worked at Rhino and other Warner Music Group labels for 25 years, and personally remastered some version of about 50 of the recordings at issue in this case, stated that he “never made a simple mechanical transfer of the original master to the new master, with no alterations to the sound recording.” Rather, he “adjust[ed] the bass, treble, midrange and other frequencies on the equalizer to emphasize and deemphasize certain instruments and vocal sections” and “mastered the loudness profile of each track to create a balanced, consistent profile across the entire album.”
The second, Dr. Durand R. Begault, an acoustical consultant and audio-related forensic expert who holds a research position at NASA Ames Research Center and is an adjunct faculty member at McGill University, compared timbre, spatial imagery, sound balance and loudness range between 57 of the plaintiffs’ pre-1972 recordings and those on CBS’s servers. “[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.”
The CBS versions fall into three categories, according to Dr. Begault: remastered versions, remastered versions of previously remastered— therefore different from the original— versions, and completely different performances. Both parties agreed that nine songs were entirely different performances from those owned by the plaintiffs, including Al Green’s “Let’s Stay Together,” The Crickets’ “Oh Boy” and The Everly Brothers’ “Like Strangers.”
Ultimately, the court found that “Plaintiffs’ pre-1972 Sound Recordings have undergone sufficient changes during the remastering process to qualify for federal copyright protection.” These changes were not “trivial,” and reflect “multiple kinds of creative authorship.”
The decision allows CBS to dodge paying performance royalties for pre-1972 recordings by playing digitally remastered versions such as those released on CD compilations. But it is not binding in any other district or state court, where interpretation of copyright law will likely differ. The case may yet go to the U.S. Court of Appeals and could even end up at the Supreme Court. The decision may also have an impact in other areas of the media industry, affecting sound recordings associated with, say, a remastered motion picture.
Still, it potentially offers other broadcasters a defense against any rights holders of pre-1972 recordings seeking performance royalties. Of course, any broadcaster that is also streaming its programs must continue to pay appropriate royalties at the rates set by the U.S. Copyright Office or through other agreements.
The case also raises some interesting questions regarding the nature of the work performed by mastering engineers.