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Broadcasters Can't Remaster New Copyrights for Old Songs

By Christopher Coble, Esq. on August 23, 2018 | Last updated on March 21, 2019

For lovers of old, analog tunes, the wave of digital remastering has presented an audiophile conundrum. Sure, some of the tracks sound better, especially since they're mostly being broadcasted and played in a digital format, but the original is the original -- should we really be messing around with these songs without the artists or producers around?

For broadcasters, however, digital remastering presented an opportunity to skirt copyright protections for older tunes. That was until the Ninth Circuit shut that door pretty firmly this week, ruling that remastered versions of pre-1972 songs are not independently copyrightable.

Analog Copyrights...

Under federal law, only songs recorded after 1972 were subject to copyright protections, but California granted ownership rights to authors of pre-'72 songs. Some of those owners digitally remastered those sound recordings onto digital formats to optimize the recordings for newer digital format broadcasting standards. CBS, for instance, uses exclusively digitally mastered or remastered sound recordings for both radio broadcasts and digital streaming, and used digitally remastered versions of pre-1972 recordings, allegedly without paying licensing fees to the owners.

A group of those owners, including Al Green, the Everly Brothers, and Mahalia Jackson sued CBS Radio in California in 2015, claimed it used their songs without permission or payment. But a district court dismissed the suit, finding the authors' state copyright interest in the pre-1972 sound recordings was preempted by federal copyright law once they were remastered. But the Ninth Circuit Court of Appeals disagreed, reviving the lawsuit.

...In a Digitally Remastered World

"A remastering, for example, of Tony Bennett's 'I Left My Heart in San Francisco' recording from its original analog format into digital format," wrote Senior Judge Richard Linn of the Federal Circuit, "retains the same essential character and identity as the underlying original sound recording, notwithstanding the presence of trivial, minor or insignificant changes from the original."

While CBS argued that remastered recordings require considerable work and creative choices (about which elements of a song to spotlight or leave in the background, for example), the U.S. Copyright Office has said "[m]echanical changes or processes, such as a change in format, declicking, or noise reduction, generally do not contain enough original authorship to warrant [independent copyright] registration."

Such was the case with these remastered songs, according to the Ninth Circuit. "From the foregoing," it ruled, "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."

The case now goes back to the district court, where the parties will try to determine whether and how much CBS may owe the songs' authors in licensing fees.

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