A judge recently ruled that any remastered version of a song, regardless of when the song was originally released, is considered a new work and will have full copyright protection for the life of the artist plus 70 years.
That’s right – a song released in 1965, for example, remastered in 1980 or 2016 or any time in between is younger than its actual age.
How did this happen and who’s responsible for this weird math?
Prior to 1972, in the United States, there was no national law structure for copyright protection. Instead, there were patchwork laws at the state level but nothing that covered all copyrighted material from coast to coast. This led to some confusion, as would be understandable, and, in 1971, the US Congress created a copyright for sound recordings from February 15, 1972 forward. Any and all songs recorded and copyrighted prior to that were kind of left in legal limbo.
This decision created two bodies of music: songs covered by state laws, which don’t distinguish between terrestrial and digital plays, and those that bring in royalties every time they’re played on any platform.
The lawsuit in question most recently—and there have been several, it should be noted—was between ABS and CBS’ radio branch.
ABS Entertainment owns, among other things, the recordings of Al Green, the Everly Brothers and Andy Williams. ABS claims CBS did not obtain the proper licenses to play those songs or paid any royalties on the recordings. CBS, on the other hand, says it isn’t playing any music from before 1972, because all the songs on its airwaves are from after 1972 because they’re remastered versions of the originals. As TechDirt notes, an internet company, Bluebeat, previously tried to use this loophole to get out of legal trouble but the courts at the time didn’t buy it.
This time is different. The court in this case has sided with CBS, that any remastered track is considered a wholly new work and therefore covered under the 1972 laws. “The court, correctly, notes that for a work to get a new copyright, it must show originality beyond the initial work—and that originality “must be more than trivial,’” TechDirt reports. (The full 19-page ruling is available here.)
The arguments relied in large part on testimony from CBS’ experts, who obviously felt a particular way about the case and the recordings in question. They claimed that remastering “involves a lot of choices by the engineer doing the remastering, as well as an audio forensics expert who insisted that by using the remastered versions, ‘CBS did not use any version of the sound recordings that plaintiffs claim to own,’” TechDirt reports. “The label that’s suing, ABS Entertainment, argued that remastered music is just a digital conversion of an old analog recording. ABS supplied its own expert…who apparently was completely unconvincing…”
Adds Death And Taxes Magazine, the judge in this case, Percy Anderson, pointed to one particular recording, of Ace Cannon’s single “Tuff,” which CBS’ expert “claimed had added reverb in addition to somehow being played faster and in a different key. Since those aspects are not ‘trivial’ differences, as in ‘mechanical changes or processes…such as a change in format, de-clicking and noise reduction…the changes reflect ‘multiple kinds of creative authorship, such as adjustments of equalization, sound editing and channel assignment.’”
There’s more, of course.
Now the RIAA is getting involved, asking for permission to file a brief in the case.
“Despite the view that the RIAA might find the remastered ruling beneficial…the recording industry’s top trade group appears to be siding with ABS in this fight,” The Hollywood Reporter says. In its three-page letter, the RIAA says it is not taking sides, necessarily, in this case, but requests that the final rule “shouldn’t compromise the state law rights in the underlying recordings. Richard Mandel, a partner at Cowan Liebowitz, argues on behalf of the RIAA against the argument made by CBS and the conclusion drawn by the California judge of a ‘right to use’ remastered recordings, one that ‘exonerates’ exploitation of work protected under state law.”
Mandel is asking the court to acknowledge that remastered versions of songs “cannot be exploited without authorization of the owner of the original, pre-1972 sound recordings. This continued vitality of state law rights in pre-1972 sound recordings—which include some of the most historically and commercially significant recordings in history—is an issue of paramount importance to the industry the RIAA represents.”