This ruling will be of big interest to broadcasters, especially those running music stations. ABS Entertainment argued that pre-1972 songs were protected under state law and could not be broadcast on the radio without permission. In 2015, ABS filed a copyright case against CBS (and others) for pre-1972 recordings for artists such as Al Green. CBS lawyers responded by saying it did not publicly perform any of ABS’s pre-1972 recordings and this week a judge agreed with CBS Radio. Here are the details.
The CBS lawyers argued that “CBS does not play vinyl sound recordings. In fact every song CBS has played in the last four years has been a post-1972 digital sound recording that has been re-issued or re-mastered. CBS played only post-1972 re-issued and re-mastered digital recordings of those songs. They are protected as new and separate works.” The company even brought in sound experts to testify about the difference between the original recordings and the newer versions. One expert testified that the recordings “have undergone sufficient changes during the remastering process to qualify for federal copyright protection.” U.S. District Court Judge Percy Anderson agreed with the CBS lawyers, determining that remastered versions of old songs get copyright — and owners of the originals can’t stop the public performance of them.
Broadcast attorney David Oxenford tells Radio Ink broadcasters should take note that this is just one case. “This is a case that may signal that broadcast stations that play only digitally remastered versions of pre-1972 sound recordings don’t have concerns about any state law liability for the public performance of these songs. But note that this is just one District Court decision that is not binding on District Courts in other parts of the country (though it may be instructive). Also, the decision may well be appealed, so nothing is final yet.” Oxenford has written about this issue before (HERE) and will most likely write about it again today.
The Hollywood Reporter has more details and what the decision means for radio. “What this decision means as far as the copyright term is concerned, termination rights, and the determination that sound engineers do copyrightable work, will be sorted out in future disputes, no doubt. In a footnote, the judge does address the concern that the decision will result in endless extension of copyright protections by saying that such worries 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.'”