It’s been two years since a District Court Judge dismissed a lawsuit against a broadcaster for playing pre-1972 sound recordings. It was ruled that the broadcaster was playing digitized versions of the songs that were created after 1972. This week, the United States Court of Appeals for the ninth Circuit didn’t buy that argument, reversed that decision, and sent the case back for additional hearings. What does all of this legal maneuvering mean to you.
According to broadcasting attorney David Oxenford the Court of Appeals concluded there was likely insufficient creativity in the remastering of the pre-1972 sound recordings to make them new post-1972 copyrighted works and that, even if they were creative enough to merit copyright protection as a derivative work, that did not end the discussion, as portions of the original pre-1972 work were included in any new work and those portions themselves had to be licensed.
Oxenford writes in detail in his latest blog that all of this means the District Court will need to analyze the remastered songs to see if there is any originality under the standards set out by the Court of Appeals. If not, then it will have to face the underlying issue of whether there is a pre-1972 performance right under California law – a question now being considered by the California courts.
Broadcast attorney John Garziglia tells Radio Ink, for the future, cases like this one could result in a financial liability to radio stations in certain states for royalty payments for playing pre-1972 music if it is ultimately adjudged that state law actually gives owners of such pre-1972 sound recordings exclusive public performance rights. “In a nutshell, what the 9th Circuit decided here was that creating digital copies of pre-1972 recordings that were previously released on vinyl or other analog media was not sufficient under copyright law to remove any pre-1972 state law copyright protection those recordings may have had in California. Federal law covers all sound recordings made on and after February 15, 1972. State law, to the extent there are any such state laws in a particular state, covers sound recordings made pre-1972.”
Garziglia says there is a significant issue in most states whether there is any law that would give owners of pre-1972 sound recordings exclusive public performance rights. “That issue is what is being litigated. So, for now, the issue goes back to the lower courts in California for further court proceedings.”