For the answer to that question, we reached out to broadcast attorney John Garziglia for more analysis. Garziglia has blogged about this issue before for Radio Ink (HERE) and he tells us that this copyright ruling is just one more chapter in the copyright wars and broadcasters cannot draw the conclusion from this case that anything is settled with respect to digital re-mastering of pre-1972 recordings.
At issue, according to Garziglia, is whether broadcasters under California law have copyright liability for the performance of pre-1972 sound recordings that were later digitally re-mastered, or whether Federal law applies exempting the broadcasts of such recordings from performance fees and SoundExchange licensing. “The Court held that the act of digitally re-mastering the specific subject pre-1972 sound recordings created a derivative work that put the sound recordings into a post-1972 sound recording category under Federal copyright law.”
He says this case may not be the seminal event that it initially appears to be. “The Court’s holding is fact-specific. It relies upon expert testimony with regard to the 174 specific recordings alleged to have been broadcast by CBS. The Court found that: 48 recordings had original expression added during the digital re-mastering process, 9 recordings were different performances than claimed by the plaintiffs, and in what can only be termed a massive bungle, for the remaining 117 recordings plaintiffs failed to proffer evidence that CBS broadcast the recordings. This is a District Court decision and is subject to appeal. Further, there is nothing that keeps the plaintiffs from suing another broadcaster and devoting better attention to the detail of trying to prove that the recordings were actually broadcast.”
Garziglia also says the decision the judge just rendered hinges on something very technical and not everything that was created was created the same exact way. “It hinges on the determination that the digital re-mastering process of the analog recordings was not just creating bits and bytes out of the analog sound, but rather involved a recording engineer making significant changes including remixing multitrack source material, adjustments of equalization, sound editing and channel assignment. It is quite possible that with other pre-1972 recordings that were not the subject of this proceeding, analog source material was simply dumped into a digital format without any discernable alterations whatsoever which, if the case, would lead to a completely different verdict.
Garziglia’s conclusion: “Because the case is fact-specific based upon the actual 174 specific recordings, broadcasters cannot draw the conclusion from this case that anything is settled with respect to digital re-mastering of pre-1972 recordings. The copyright war continues.”
Reach out to John Garziglia by e-mail at [email protected]