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Derivative Works and Remastered Sound Recordings

June 16, 2016
Post by Brandon W. Clark

A recently decided court case regarding remastered versions of pre-1972 sound recordings could have significant legal and practical implications for musicians, recording artists, sound engineers, and record labels.

Judge Perry Anderson, of the United States District Court for the Central District of California, recently granted Summary Judgment for CBS Radio Inc. in a case brought by ABS Entertainment Inc and a number of other record labels that collectively own the copyrights to sound recordings by Al Green, Andy Williams, The Everly Brothers, Ray Stevens, Jackie Wilson, and many other artists.

ABS alleged that CBS Radio violated their copyrights by performing the sound recordings over their radio stations without paying royalties or licensing fees. The original recordings were all produced prior to 1972. Pre-1972 sound recording do not enjoy federal copyright protection but are protected under certain state law, including California.

CBS Radio argued that since the recordings they play on the radio are remastered versions of those recordings, and the remastered recordings were not created until after 1972, they should be governed by federal copyright law. Federal copyright laws exempt terrestrial broadcast radio stations from having to pay licensing fees for post 1972 recordings.

Thus, the primary issue in the case centered on whether or not sound recordings, created before 1972, that are later remixed or remastered, after 1972, create a new separately copyrightable derivative work. In Judge Anderson's order granting Summary Judgment for CBS he discussed whether a sound engineers remastering of a pre-1972 sound recording through subjectively and artistically altering the work's timbre, spatial imagery, sound balance, and loudness range, but otherwise leaving the work unedited is sufficient to create a derivative work which is entitled to federal copyright protection.  In doing so he found that the remastered versions were sufficiently entitled to federal copyright protection as derivative works and ruled in CBS' favor.

The case is likely to be appealed but if the ruling stands it will create many new issues and practical questions that could have major implications on the music industry. Record labels often release remastered versions of sound recordings that to a "normal"listener are indistinguishable from the original recording. Many industry commentators view these remastered versions as simply a marketing tool and a way for the labels to create additional revenue off of old recordings. Taken to the extreme, the ruling in this case could essentially create a perpetual copyright term if the label continuously releases remastered versions with only minimal changes.

This case is another example of copyright laws failing to keep up with technology and the ease of altering sound recordings given today's technology. From a practical standpoint it raises several questions, including, to what interest, if any, the original recording artist has in the new derivative work and what are the financial implications from royalties paid on sales of the new derivative work. Additionally, the ruling magnifies the importance of work for hire agreements from all sound personnel and ensures that artists should now attempt to restrict mastering and remastering rights granted in recording agreements.

To read a copy of the full decision and analysis click HERE.

Brandon W. Clark is the Chair of the Copyright And Entertainment Law Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit www.ipmvs.com or contact Brandon directly via email atbrandon.clark@ipmvs.com.


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