A record company suing CBS for infringing its pre-1972 sound recordings was hit with a novel and thought-provoking defense theory that could substantially limit the reach of its copyright if accepted.
In ABS Entertainment v. CBS Corporation, CBS asserted that when it played the plaintiff’s songs, they were in fact remastered CD versions of the pre-1972 sound recordings. Because the remasters were produced after January 1, 1978, CBS argued that they are protected under the 1976 Copyright Act, which only grants a limited public performance right for digital uses.
ABS complained in its opposition to a motion for summary judgment filed by CBS that “the undisputed facts show that no one has ever claimed a federal copyright for the remastered copies of Plaintiffs’ pre-1972 works at issue in this case.” This raises a valid point: what exactly would copyright in a remastered sound recording cover? Clearly, it (1) would not cover the underlying musical composition, (2) could be a derivative work of the original, and (3) would only cover any new material added to the preexisting sound recording that meets the law’s required minimal level of creativity.
CBS argued in its reply brief that the process of mastering, while based on “machines and knobs,” was not devoid of “human direction or control” and that even the plaintiffs agreed the choices mastering engineers made in remastering the songs “were creative and subjective,” thus meeting the requisite level of creativity.
ABS countered that mastering involved “only mechanical processing adjustments…made to optimize the recording for a particular technological format” and did not encompass remixing, editing, or the addition of new sounds. ABS also made a valid point:
“If a derivative work could be created without some substantial, creative modification of the sound recording itself-through mixing, editing, resequencing or adding/deleting sounds, the copyright duration could be extended indefinitely by continuing to remaster into new formats as technology changes.”
Oral arguments are set for May 2, 2016 in the Central District of California, so stay tuned.