Sound Engineers As “Authors”: New Copyright Protection To Re-Mastered Pre-1972 Recordings

In the world of music copyrights there is a divide between songs created “pre” and “post” 1972. The Sound Recordings Act of 1971 granted copyright protection to sound recordings (adding to the existing protection for underlying compositions) created from 1972 onwards, however all were required to grant a compulsory license for the performance of these songs. Part of this act was there were no royalties to be paid for terrestrial radio broadcast of these post-1972 sound recordings. All pre-1972 sound recordings were not granted federal protection, and hence were not subject to the compulsory performance license requirement. As such, pre-1972 sound recordings are under the protection of state copyright law. California’s copyright laws gives an exclusive right of public performance of sound recordings, therefore without a license from the sound recording holder, performance of the sound recordings, such as on the radio, would be copyright infringement. This scenario is exactly where CBS Radio found itself when it was sued for the public performance of a number of pre-1972 sound recordings with ABS Entertainment v. CBS Radio

In response to the accusation of copyright infringement, CBS Radio argued it was not preforming the pre-1792 recordings; rather, it was preforming recently re-mastered digital versions of these recordings. CBS argued these re-mastered versions were created after 1972, and therefore subject to the compulsory licensing requirement of the Sound Recordings Act of 1971, hence granting the exemption of royalty payment for performance over terrestrial radio. The main crux of this case became the copyright-ability of re-mastered sound recordings as “derivative works”.

CBS Radio argued that its sound engineers had altered the pre-1972 recording to such an extent that it cleared the bar of “originality” to qualify for copyright.   Towards this argument, declarations from sound engineers were submitted stating the re-mastering process is driven by the engineer’s “personal aesthetic”, and that different engineers will produce a noticeably different re-mastering of the same song.

Sound experts additionally testified to the different timbre, pitch, tempo and spatial imagery of the sound waves between the pre and post-1972 versions of the recordings in question. All of this combined to result in the court finding that sound engineers can in fact impart the requisite level of creativity and originality to a pre-1972 recording as to make it into a derivative work.

In addition to losing the argument against originality and copyright-ability of re-mastered sound recordings, plaintiffs in this case also lost the argument as to infringement of the pre-1972 work. While creators of derivate works can still infringe on underlying copyrighted works they are derived from, the court rejected plaintiff’s arguments on this point. First, plaintiff claimed they never authorized the creation of the derivative work, however they could not produce contracts with the mastering sound engineers showing they affirmatively barred the creation of derivate works. Finally, the court ruled CBS Radio did not infringe on the pre-1972 copyright works because they had the right to preform the derivative post-1972 work royalty-free on terrestrial radio, and it was that post-1972 work which was preformed in said manner.

This ruling is very important for the copyright holders of pre-1972 works, and sound engineers alike. First, the life of copyright protection for pre-1972 works seems to have just been given an indefinite extension, if the holder chooses to re-master said recording. Second, sound engineers can now be thought of as “authors”, which opens up a number of doors to questions about licensing and joint-authorship of sound recordings. This decision will most likely be appealed and should be watched closely by all involved in the pre-1972 sound recording field.

Sound Engineers as “Authors”: New Copyright Protection to Re-mastered Pre-1972 Recordings

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