The question of whether the sound recording mastering process, and thus the fruits of mastering engineers' labors, can meet the originality standard under copyright law was decided in a case reported on here in April, ABS Entertainment v. CBS Corporation. CBS defeated copyright infringement claims for use of pre-1972 recordings of the plaintiffs' classic artists such as Al Green and the Everly Brothers by pointing out it only played remasters created after 1972 (the year sound recordings were granted copyright protection under federal law). These recordings, CBS argued, were entitled to copyright protection because they met the "originality" standard, despite being derivative works of the original masters.
Sound recordings created after February 15, 1972 do not garner their owners royalties for plays by traditional radio stations because no public performance right attached to them, and only compulsory license fees set by Sound Exchange are paid for internet streaming. However, sound recordings created before 1972 are covered by a patchwork of state copyright protection, and thus infringement could have been found for 174 of the plaintiffs' recordings if state law had applied.
Enter the resourceful lawyers, who presented the question of whether the remasters their client actually played in its broadcasts, which were created after 1972, could qualify for copyright protection as derivative works. On summary judgment the plaintiffs submitted testimony from an expert that remastering is nothing more than mechanical processing comprised of digital conversion of the underlying sound recording and therefore not "original" under copyright law.
However, the district court agreed with CBS and disregarded the plaintiffs’ expert’s testimony as inadmissible due to the fact it was “irrelevant, unscientific, based on unreliable methodology, and [lacked] adequate foundation as expert testimony.” Instead, the court looked to a case involving copyrightability of editing of a motion picture’s audio track, Maljack Prods., Inc. v. UAV Corp. In that case, the court held that a “‘derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed or otherwise altered in sequence or quality’ is a protectable new work.”
The ABS court used Maljack as a guide to determine that the requisite level of originality required for copyrightability was met in the remastered works. Specifically, the court found that the remastered versions of the plaintiffs’ pre-1972 sound recordings had undergone sufficient changes that were not “trivial,” and instead reflected “multiple kinds of creative authorship, such as adjustments of equalization, sound editing, and channel assignment.” These changes were enough to make the works worthy of federal copyright protection.
The case is another reminder of the need for dramatic changes to the system now in place for calculating sound recording royalties. Hopefully Congress will soon heed the increasingly strident calls to fix the patchwork of state common law copyright statutes that currently protect pre-1972 sound recordings and create an overarching federal scheme of protection.