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Remastering Not Enough for Federal Protection of Pre-1972 Recordings

By George Khoury, Esq. on August 28, 2018 | Last updated on March 21, 2019

While consumers are often delighted and confused as to why certain songs, albums, and movies get remastered, a recent decision by the Ninth Circuit Court of Appeals might have lawyers for the music industry paying very close attention ... again.

The decision in ABS Entertainment Corp v. CBS Corporation has some music insiders reeling as the appellate court explained that remastering a recording generally isn't going to be creative enough to be considered a new work for federal copyright protection purposes. This stands in stark contrast to the federal court's decision in 2016.

The fight at the district court level did not go well for ABS Entertainment. Its expert was pretty much disregarded.

However, on appeal, the Ninth Circuit recognized that there's a big difference between some remasters and others. And while it broadly ruled in favor of ABS Entertainment that a remaster does not create a new copyrightable work that triggers federal copyright protection, it noted that when a remastering makes significant, substantive, changes, rather than just trivial or mechanical changes, the remaster could very well be considered a derivative work.

The Ninth Circuit went into details as to how the remastering witnesses for CBS Corp. basically explained that they were converting analog to digital and improving sound quality, for digital distribution channels. The panel went on to explain that digitizing, or changing the form or format, isn't enough. The court highlighted the difference between studio engineers and remaster engineers to explain:

"The role of remastering engineers, however is usually very different from the role of the studio engineers. Studio engineers' decisions almost always contribute to the essential character and identity contained in the original sound recording. By contrast, the remastering engineer's role is ordinarily to preserve and protect the essential character and identity of the original sound recording, and to present that original sound recording in the best light possible by taking advantage of technological improvements."

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