Is A Remastered Song A “New” Song?

Performance rights under the 1971 Sound Recordings Act (an amendment to the Copyright Act) are not protected, which means that radio broadcasters essentially pay no royalties to record labels, artists, and other rights holders for playing music through terrestrial radio broadcasting. There are other federal regulatory acts, such the 1995 the Digital Performance Copyright in Sound Recordings Act (“DPRA”), which grants copyright owners digital public performance rights in sound recordings; and the 1998 Digital Millennium Copyright Act (“DMCA”), which allows copyright holders to receive royalties from digital streaming services. But the Copyright Act still creates a limitation on what copyright holders are able to earn through “performance” of their copyrights.

There is an important exception to performance rights under the Copyright Act. Because the amendment was enacted by Congress in 1971, all pre-1972 recordings remain subject to the rights and remedies under state statutes or copyright common law. This means that performance rights for pre-1972 recordings are not subject to the Copyright Act, and therefore, some radio stations must pay royalties for broadcasting pre-1972 recordings in certain states. This is significant because some of the most important, popular, and lucrative sound recordings of all-time were produced before 1972.

In March 2016, in a case involving CBS Radio (“CBS”) and ABS Entertainment (“ABS”), CBS took a different approach to opposing the pre-1972 recording conundrum by arguing that CBS does not play pre-1972 recordings because the songs it programs from that era consist of “remastered” versions that were created after 1972. The contention is that a remastered recording is a new, transformative work. CBS argues that the rights of those recordings should be governed solely by federal law, which would allow CBS radio stations to continue playing the songs for free.

The argument from ABS is that it takes more than a simple conversion of a song to digital format to create an entirely new copyrighted work. ABS asserts that remastering sound recordings from one format to another and optimizing the sound quality for a new format does not actually convert a pre-1972 sound recording into a post-1972 sound recording.

Nevertheless, in late May 2016, a federal court in California sided with CBS’s argument that remastered versions of pre-1972 songs are protected under federal law because the recordings have undergone sufficient changes during the remastering process. The “remaster” argument was a big win for CBS, and one that internet radio companies Sirius and Pandora must surely regretted not asserting after making multi-million dollar settlements with record labels in 2015.

Even with a federal court agreeing with CBS’s remastered recording interpretation, there are arguments that state law still applies to pre-1972 recordings. The Recording Industry Association of America (“RIAA”) has argued that under provisions of the Copyright Act of 1976, not only are older songs afforded protection under state law until the year 2067, those seeking to broadcast remastered versions of pre-1972 songs still must acquire authorization for both the original and new versions.

Most recently, in the ongoing legal fight between CBS and ABS, CBS reiterated to a Ninth Circuit panel that the purpose of remastering songs is to create a completely different sound recording with an end result that it can be marketed to the public as a brand new work. However, ABS and other rights holders argued that nobody went back into the studio and recorded new sounds. In essence, the argument is that a remastered recording simply improves the sound quality, but contains nothing new.

This could ultimately be a key factor for the court in determining whether a remastered recording is indeed a new recording because all the recorded sounds in a remastered pre-1972 song were actually affixed to it prior to 1972 during the original recording sessions, and as such, what is actually new? Nevertheless, CBS can argue that some remasters provide significantly improved clarity to where certain instrumentation and other sounds can actually be heard for the first time due to the remastering process, or that in addition to the remaster, some remastered recordings are also remixed, modifying the recording into an alternative, new presentation.

Clearly a lot of money is at stake in this ongoing fight between CBS and music copyright holders, and one suspects that there will continue to be numerous disputes over these valuable pre-1972 recordings for years to come because of a lack of uniformity between the federal and state statutes. Nevertheless, the interpretation of whether a “remaster” is a “new” recording will play a crucial role in determining whether radio programmers have to pay royalties to rights holders for broadcasting pre-1972 recordings. That determination will undoubtedly change the radio programming industry for both radio companies and copyright holders. Stay tuned.

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