Posted: October 10th, 2018
By: Whitney Hosey, Editor-in-Chief
The Ninth Circuit recently held in ABS Entertainment, Inc. v CBS Corporation et. al.that “pre-1972 sound recordings were not entitled” to copyright protection under the Copyright Act.
The Plaintiff, ABS Entertainment, Inc. (“ABS”), attempted to file its digital remasters of several pre-1972 analog recordings as new copyrights. CBS Corporation and its affiliates (“CBS”) played ABS’ remastered songs on its radio and internet streams without ABS’ permission. CBS paid royalties to the owner of the song rather than ABS and paid a license fee to Sound Exchange as required by the Sound Recording Act (the “Act”). ABS sued CBS alleging it was “publicly performing pre-1972 songs in violation of California state law.”
Prior to 1971, sound recordings were not covered by federal copyright law, while the music and lyrics were covered, the recordings themselves were not. Some states acted on their own to ensure copyright protection for the recordings. In 1971, Congress pass the Sound Recording Amendment making “sound recordings eligible for federal copyright.” However, the Act only provided such protection to recordings made after 1972. Therefore, anything recorded before that was only protected by state law.
In light of these laws, the United States District Court for the Central District of California found there was no genuine issue of material fact about copyright eligibility of remastered sound recordings and granted summary judgment to CBS. ABS appealed, and the Ninth Circuit reversed.
The Ninth Circuit relied on the Second Circuit’s precedent in Durham Indus. v. Tomy which established a two-part test to establish that a derivative work is copyrightable. First the court must establish “whether the derivative work is original to the author and non-trivial.” It also “requires that the work does not hinder the original copyright owner’s ability to exercise his rights.” Inevitably, the Court concluded that remastered works are not eligible for a new copyright as a derivative work “unless its essential character and identity reflect a level of independent sound recording authorship that makes it a variation distinguishable from the underlying work.”
Essentially the Court concluded that unless the work is different from the original in some significant way, rather than simply improving the quality of the work, then the remastered version cannot be protected.
Whitney is a Third-Year Law Student at Wake Forest University School of Law where she serves as Editor-in-Chief of the Journal of Business and Intellectual Property Law. She is a graduate of the University of Virginia where she earned her B.A. in History and Government. Before returning to law school, Whitney enjoyed a career in New York working as an Account Executive in the advertising industry. Whitney plans to pursue a career in Estate Planning and Real Property Law.