Ninth Circuit Holds Mere “Remastering” of Pre-1972 Sound Recording Does Not Entitle It to Federal Copyright Protection

On August 20, 2018, the Ninth Circuit Court of Appeals reversed a lower court’s ruling that digital remastering of pre-1972 sound recordings creates a new sound recording entitled to copyright protection.[1]  In so holding, the Ninth Circuit rejected the Defendant radio broadcasters’ claims that, because the pre-1972 sound recordings had been remastered from analog sound recordings into digital formats, they were entitled to federal copyright protection.

The Plaintiffs, a group of record companies that own sound recordings of classic artists such as The Everly Brothers and Al Green, filed a class action lawsuit against CBS Corporation and CBS Radio Inc., alleging that CBS and other radio broadcasters infringed on their exclusive public performance rights under California copyright law by broadcasting their sound recordings.

The sound recordings that Plaintiffs owned were all recorded prior to 1972.  This is important because Congress did not grant federal copyright protection to the specific performance of a song fixed in a medium (i.e., a sound recording) until 1971— and only to those sound recordings created after February 15, 1972.

Thus, sound recordings fixed prior to February 15, 1972 are instead governed by various state laws.  The Plaintiffs claim that CBS is liable for infringing on their California state law copyrights for CBS’s performance of 174 of their recordings.

In response, CBS argued that it was entitled to federal copyright protection because it had only broadcast versions of the Plaintiffs’ recordings that had been “remastered” after 1972.  The sound recordings had been remastered by sound engineers so as to convert them from analog formats to digital formats, and to improve the overall sound quality and loudness.  Plaintiffs contend that this resulted in a change in quality, but not in any substantial difference to the identity or character of the sound recordings such that Defendants should be entitled to federal copyright protection.

So the question becomes: does a sound engineer’s remastering of old recordings to improve sound balance and loudness, but otherwise leaving the recording unchanged, entitle it to federal copyright protection?

The lower court concluded that it did.  The lower court explained, “[D]uring the remastering process, at least some perceptible changes were made to Plaintiff’s Pre-1972 Sound Recordings,”[2] and that these changes were not merely “mechanical” or trivial changes.[3]  Rather, the changes “reflect multiple kinds of creative authorship, such as adjustments of equalization, sound editing, and channel assignment.”[4] The lower court concluded that as to the works reviewed by both parties’ experts, the remastered sound recordings were entitled to federal copyright protection as original derivative works.

But on appeal, the Ninth Circuit rejected this analysis. Merely improving the sound quality of a recording, the Court held, is not the same as making creative decisions that substantively change the work.

“Although we do not hold that a remastered sound recording cannot be eligible for a derivative work copyright, 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 (emphasis in original).”[1]

Thus, the takeaway seems to be that, in order to qualify for copyright protection, there must be a substantial, artistic or creative change to the underlying recording, not just a “remastering.”

[1] ABS Entertainment, Inc. v. CBS Corp., 2018 WL 3966179 (9th Cir. Aug. 20, 2018).

[2] ABS Entertainment, Inc. v. CBS Corp., 2016 WL 4259846, at *8 (C.D. Cal. May 30, 2016).

[3] Id. at *9.

[4] Id. at *4 (internal citations omitted).

[5] ABS Entertainment, Inc., 2018 WL 3966179 at *13.

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