In the latest lawsuit involving the public performance of so-called Pre 72 sound recordings 1, defendant CBS Radio is making a claim almost as controversial as the plaintiff’s allegations. Much digital ink has been spilled criticizing the decisions of federal district courts in California and New York finding that record companies enjoy a state law right of public performance in their Pre 72 recordings, despite not having ever asserted such rights before 2012. 2 CBS, in its recent motion for summary judgment, makes a similarly bold assertion: that it cannot be liable to plaintiff for infringing a performance right in plaintiff’s Pre 72 recordings because CBS only performs “remastered” versions of plaintiff’s sound recordings — and not the original Pre 72 sound recordings owned by the plaintiff.
The question of when a remastering or remixing of an existing recording is entitled to a new copyright has been debated before.3 The problem here is that record labels have been remastering previously released recordings for many years and *not* attempting to secure a new copyright in those remastered versions. The reason is fairly obvious — as plaintiff’s point out in their response to CBS’ motion — if a record company could secure a new copyright simply by remastering a perviously copyrighted sound recording, a shrewd record executive could extend the life of copyright in a sound recording forever. While CBS is correct that remastering engineers contribute significant creativity in the process of applying new technologies to remaster a sound recording to (hopefully) improve the listener’s experience of listening to a previously released recording, it strikes me as dubious to conclude therefore that the resulting remastered sound recording is entitled to an entirely new federal copyright. If CBS is correct, then we could find ourselves in a world in which the originally issued sound recording enters the public domain, but the digitally remastered version continues to enjoy copyright protection, even though to the layperson those are the same recording.
CBS’ motion for summary judgment
- Sound recordings created (“fixed”) prior to February 15, 1972 are not protectable by federal copyright. Instead, such recordings are protected, if at all, under state law until 2067. ↩
- Steve Gordon, The Current State of Pre-1972 Sound Recordings, 4 NYU J. Intell. Prop. & Ent. L. 336, at 347 (2015) (questioning “whether Judge Gutierrez’s decision will be upheld” because it ignored clear legislative intent); Noah Drake, Flo & Eddie, Inc.: Public Performance Rights for Pre-1972 Sound Recordings, 6 Calif. L. Rev. Cir., at 61, 66-67 (2015) (criticizing failure to consider legislative history); Tyler Ochoa, A Seismic Ruling on Pre-1972 Sound Recordings and State Copyright Law, Tech. & Mktg. L. Blog (Oct. 1, 2014), avail. at http://blog.ericgoldman.org/ (“Interpreting a state statute first enacted in 1872 to provide such rights now, some 75 years later, will wreak havoc with existing commercial practices” and “undo a 75-year-old consensus that state law does no provide a public performance right”). Numerous amici in the Ninth Circuit Pandora appeal document the criticism. See Flo & Eddie v. Pandora, No. 15-55287, 2015 WL 5313052 (9th Cir. Sep. 9, 2015) (Computer & Communications Industry Association); id., 2015 WL 5331515 (National Association of Broadcasters); id., 2015 WL 5313054 (Yale Law School Information Society Project and Affiliated Scholars of Intellectual Property and Free Expression Law); id., 2015 WL 5313053 (9th Cir. Sep. 9, 2015) (Copyright and Intellectual Property Law Professors). ↩
- See James J. Schneider, Defeating the Terminator: How Remastered Albums May Help Record Companies Avoid Copyright Termination, 53 B.C. L. Rev. 1889, 1902 (2012). ↩