The 9th Circuit of the Court of Appeals in the U.S. has ruled that a re-mastered song does not create a new copyright.
The decision represents a reversal of a 2016 ruling by a lower court which held that re-mastering a song was posited to make a brand-new work eligible for new copyright as it introduced substantially new elements into the recording.
The 2016 case of ABS Entertainment v. CBS Corp. entailed a radio station being sued by the owners of the recording copyrights of certain ‘old’ performers; those being recordings from before 1972 where federal copyright law is not in effect.
The lawsuit was in regards to the radio station not paying sufficient royalties for the pre-1972 songs they played – they were instead paying federal royalty rates.
Essentially, the radio station argued that since they were playing re-mastered CD and digital versions of the pre-1972 songs that were released after 1972, the recordings were therefore new pieces of copyright governed by the federal copyright law. This was agreed by the court.
In the reversal decision, however, the Court of Appeal held that a re-mastered work is not an independent recording eligible for new copyright, “unless its essential character and identity reflect a level of independent sound recording authorship that makes it a variation distinguishable from the underlying work”.
In other words, just making the sound clearer or emphasising certain aspects of a song does not sufficiently alter the identity of the original recording such as to make it eligible for new copyright protection.
This is despite the defence counsel in the 2016 case somewhat cleverly arguing it did constitute new creative expression, referring to how a sound engineer him or herself personally decides in the re-master that they “want them to hear the bass line more. Or… hear the background singers more”, and how they spend significant time achieving their desired effect for the song.
Nonetheless, if the original ruling had been allowed to stand it would have created a copyright loophole in which any one song could essentially have copyright maintained on it forever, as it would simply require the alteration of anything that is even relatively insignificant about the original recording of the song.
