T he 9th Circuit heard oral arguments last week on whether or not recent digital remasterings of pre-1972 songs were fundamentally different enough from their original recordings to qualify as new intellectual property and thus be covered under Federal Copyright Law. In an appeal filed by ABS Entertainment last year, the company argues that the District Court erred when they granted CBS Entertainment federal copyright protection over their digital remastering of songs recorded before 1972.

There has been a recent uptick in cases that revolve around copyright for songs that were recorded before 1972. Federal Copyright Law that only covers songs after 1972 allows for radio stations to play songs over the terrestrial radio without paying royalty fees. Songs recorded prior to 1972 are not subject to federal copyright laws but are instead subject to state laws, which happens to be very artist-friendly in states like New York and California. However, radio stations for decades have been playing pre-1972 songs without paying royalties, treating both pre and post-1972 songs the same. In July of 2015, Sirius XM settled a lawsuit in California with independent music labels by agreeing to pay $210 million in owed royalties for pre-1972 songs played on air. Pandora faced a similar lawsuit in New York and was also ordered to pay royalties for pre-1972 songs.

The original case between ABS and CBS was filed in California federal court in 2015 and a district judge ruled that digital remasterings of pre-1972 songs were substantially different enough from their original recordings to be considered new derivative works covered under federal copyright law. Under the Federal Copyright Act, radio stations do not have to pay royalties for songs they play over the radio. As such, playing digital remasterings of pre-1972 songs are also not subject to royalty payments by CBS.

ABS appealed the case in June of 2016, arguing that the district court was incorrect in its application of federal law because there exists a bright line rule that sounds fixed before 1972 are not subject to federal copyright law. Though Section 114 of the Copyright Act protects derivative works, there is no mention of extending protections to pre-1972 recordings within derivative works. ABS argues that even if digital remasterings are considered derivative works, federal law would only apply to the new elements and sounds added by CBS and not the whole song itself because those sounds were fixed prior to 1972. Furthermore, in oral arguments, they argue that the digital remasterings should not be considered derivative works because simply improving quality of the songs does not add anything new to the song itself. Additionally, digital remasterings serve to replicate the original sound of the song at the time it was recorded and to correct any technical deficiencies in the original recordings. ABS argues that the test for derivative works, in this case, should be if the layperson could discern any audible differences between the remastering and the recording.

On appeal, CBS argues that their digital remasterings should be considered derivative works because these remasterings allow for listeners to hear the song in completely new ways. An example of this is the positioning of backup singers higher within the mix of the original track. The test for derivative works, CBS argues, should be whether or not the creator of the new work applied sufficient artistic creativity. CBS further contends that purpose of these recordings is not to create an authentic or clear original recording, but rather to create aesthetic differences that could be marketed in the current times. They point out that ABS concedes that the digital remasterings and the original recording on vinyl have substantial differences. Lastly, they argue that when both federal law and state law could apply to a single work, Section 301 of the Copyright Act explicitly states that federal law should supersede state law. In this case, songs that include both pre-1972 sounds as well as post-1972 sounds should be covered entirely by federal law.

9th Circuit Judge Berzon asked CBS if a cleaned-up version of the Mona Lisa would be considered the same work. CBS responded that if the painting were just cleaned up, it wouldn’t be different, but that if the introduction of a creative expression was aimed to create a different-looking painting, it would be considered a derivative work.

To listen to the oral arguments, please click here.

Adele Zhang is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).

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