Everything Old is New Again! Are We On the Road to Perpetual Copyright in Sound Recordings?

Stephen Carlisle June 16, 2016

On May 30, 2016, a District Court in California dropped a bombshell. It ruled that the act of re-mastering a sound recording created a new sound recording copyright. ¹ This paves the way for a host of unintended consequences, including the elimination of termination rights and the possibility that sound recordings could in effect receive “perpetual” copyright.

This dispute is simple enough. The Plaintiffs are several recoding companies that own the copyrights in numerous pre-1972 sound recordings, including those by Al Green, Andy Williams, The Everly Brothers, Ray Stevens, Jackie Wilson, The Chi-Lites, King Floyd and Mahalia Jackson. ² The Defendant, CBS, owns and operates terrestrial radio stations that play these recordings. ³ In the wake of the now famous Flo and Eddie case against Sirius XM and Pandora, which ruled that California and New York State law granted performance rights to pre-1972 sound recordings, ⁴ these Plaintiffs sought similar relief against CBS.

In defense, CBS raised a novel defense: that it was not performing pre-1972 sound recordings, but “remastered” versions of those sound recordings which now contained additional elements, and thus were covered by Federal, not State laws. ⁵

“The question presented by this Motion asks whether a sound engineer’s remastering of a pre-1972 sound recording-through subjectively and artistically altering the work’s timbre, spatial imagery, sound balance, and loudness range, but otherwise leaving the work unedited-is entitled to federal copyright protection. Based upon the record in this matter, the Court concludes that this question must be answered in the affirmative.” ⁶

The Court starts off by noting that the Copyright Office’s Circular 56 provides that a derivative sound recording can result from “a remix from a multi-track recording” as well as “a remastering that involves multiple kinds of creative authorship such as adjustments of equalization, sound editing, and channel assignment,” but that “[m]echanical changes or processes applied to a sound recording, such as a change in format, declicking, and noise reduction generally do not represent enough original authorship to be registered.” ⁷

The Court found persuasive the testimony of William Inglot, who supervised the remastering of 46 of the recordings at issue stating that he adjusted “the bass, treble, mid-range, and other frequencies” and “mastered the loudness profile of each track, to create a balanced, consistent profile across the entire album.” ⁸ The Court also quoted at length from the testimony of Dr. Durand R. Begault, “an acoustic engineer and research scientist specializing in forensic investigation of audio evidence.” ⁹

At this point, I get a little uneasy. Yes, there are changes being made, but are they audible to the ordinary listener and do they make a difference artistically?

The Court doubles down on its process by belittling the expert offered by the Plaintiff, who performed waveform and spectral analysis along with “critical listening,” which the Court derides as appearing “to involve listening while paying attention.” ¹⁰

Ouch.

In particular, the Court recounted the changes made to Ace Cannon’s “Tuff” which included additional reverberation, and being played in a different musical key and at a faster tempo. ¹¹

Here’s the problem with this analysis. Merely speeding up the rate at which the source tape is played back will both increase the tempo and change the key in which the song is heard. Not being a musician, the Judge would not know this. To me, merely speeding up playback is a fairly mechanical act, and not nearly as complex artistically as re-adjusting the bass, mid-range, treble and equalization on a multi-track recording.

So, what we have is an opinion that ticks all the logical boxes, but falls flat in the one area in which the courts are ill-equipped to decide: does it make an artistic difference? Would the average listener notice? Remember, just a few weeks ago, the 9^th Circuit made its ruling in the Madonna sampling case partly because the sample was so small and fleeting that the average listener would not notice it, ¹² a ruling which is binding on this Court.

Let’s go back to when the CD first came on the market. Everything, and I mean everything, got “remastered,” or so it was claimed to be included on the new media. Mostly, this was to take advantage of the expanded frequency range of the CD over the vinyl recording. I remember being wowed at the depth and volume of the bass pedals in Genesis’ “Firth of Fifth” middle section. I was also aghast at the remaster of Kansas’ “Carry On Wayward Son” that was now awash in reverb.

Some things were carefully reworked. It’s hard not to say that those remixes and remasters don’t deserve protection as a derivative work, and that the Judge’s ruling is correct.

But some things were not carefully re-worked. Many times, the two track masters were simply digitized and then released. In fact, many CDs carried the legend that the CD was so superior in audio quality that there was frequently a warning that the “CD might reveal limitations of the source recordings.”

There are also changes that can be done which make the recording seem better, without making any real artistic choices.

I recall a conversation I had with a studio engineer (he worked with The Eagles, among others) about the relative merits of new “super-audiophile” formats such as SACD and DVD audio. He told me that loudness was a great way to “trick the ear.” That in merely making the sounds louder, the general perception of the public was that the recording was now “better.” So, simply making the elements louder in volume is a change in the master, and makes the recording seem better, but does not strike me as an “artistic choice” that warrants new copyright protection.

So, how am I, as both musician and attorney supposed to know which pre-1972 sounds recordings have been carefully remixed and remastered (and qualify for new derivative work status), and which ones have not? I don’t think that even with a musically trained ear and a knowledge of copyright law, that I could.

So, the result is that everything which has been digitally remastered now presumptively qualifies for a new derivative work copyright, and a new 95 year term from that date for the “remastered” recording. And this is an event which is capable of being repeated, which could extend the copyright life of all sound recordings into perpetuity.

The Judge dismisses this possibility in a footnote.

“Plaintiff’s also assert a policy based argument than an adverse ruling in this case will result in potentially endless extensions of copyright protection of pre-1972 Sound Recordings as they are remastered into new formats. (citation omitted) Plaintiff’s concerns are unwarranted because the Court’s finding of copyrightable originality is based not on a mere conversion between formats, but on the original expression added by a sound engineer during the remastering process. Such original expression is entitled to copyright protection, regardless of whether the underlying work was fixed before or after 1972.” ¹³

Yes, but once again, how is anyone to know whether the remastering process contained enough “original expression” to qualify for a new derivative work copyright, or was just a “mere conversion”? The Judge knows because he had the benefit of witnessing testimony and expert testimony. Not so with the general public or anyone else who now wishes to make use of the sound recording.

The bedrock principle of derivative works the Judge seems to be sidestepping here is that the new copyright only applies to what is new about the work, it does not revive the old. ¹⁴

“The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.” ¹⁵

But again, how are you going to know?

If a new author added a chapter to Huckleberry Finn, it would be pretty obvious what was new, and what was old. When George Lucas revised the Star Wars films with new digital effects, the changes were fairly obvious to anyone familiar with the films (Greedo shot first?).

But recordings are a very different beast. For example, changes in the quality of playback equipment will definitely alter your listening experience without changing the nature of the underlying recording. Anyone who has added a sub-woofer to their stereo system will know what I am talking about.

So, changes to the bass or treble, or to the equalization, or to even the channel assignment may not be noticeable to the average listener. Perhaps the test should not have been, “what changes have been made?” but “would these changes be significant enough artistically so that a listener familiar with the recordings would notice the difference?”

The next problem is the effect that this will have on artists’ termination rights. I know, because it was done to my client.

The renewal period on a sound recording my client made for a major label was approaching. We made a special filing with the Copyright Office to recapture the recording under a little known device known as the Abend recapture, which is too complicated to explain here. Needless to say, the strategy of the record company was to re-issue the recording in question as “remastered” with two additional songs on it, and pulled the old recording from distribution. Since the claim was only to the original sound recording, the client’s sole recourse would be to go to Court and challenge the new copyright afforded the “remastered edition.”

The same tactic could now be used against any musician seeking to terminate their sound recordings under the provisions of Section 203 as well. Just “remaster” the recording, and pull the old one.

Remember, section 203 explicitly provides that:

“A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination.” ¹⁶

The last problem, one that has drawn the attention of the RIAA (who you would think under normal circumstances would be happy about the decision), is that this ruling effectively nullifies section 301 of the Copyright Act which provides in part that

“any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067.”

As well as the provision of section 103 (b), which states that as to a derivative work

“The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.”

Which, of course, this decision does by taking the position that these remastered sound recordings have effectively swallowed up the State law protections afforded pre-1972 sound recordings under the Flo and Eddie decisions. Note that since the performances that occurred in Flo and Eddie were by digital transmissions, they are governed by different laws and this ruling does not affect those decisions. You can read the letter of the RIAA asking to be allowed to intervene as an amicus curae here. ¹⁷

So, the decision is certain to be appealed, where the always unpredictable 9^th Circuit will weigh in on the controversy. But in the meantime, as the late Peter Allen once sang…

Don’t throw the past away
You might need it some rainy day
Dreams can come true again
When everything old is new again ¹⁸