<i>Decision of Note:</i> Sound Recordings Remasters Don't Get Federal Copyright Protection

“A remastering, for example, of Tony Bennett's 'I Left My Heart in San Francisco' recording from its original analog format into digital format, even with declicking, noise reduction and small changes in volume or emphasis, is no less Bennett's 'I Left My Heart in San Francisco' recording,” visiting Federal Circuit Judge Richard Linn wrote for a unanimous Ninth Circuit panel.

“It retains the same essential character and identity as the underlying original sound recording, notwithstanding the presence of trivial, minor or insignificant changes from the original,” Circuit Judge Linn wrote. “That is so, even if the digital version would be perceived by a listener to be a brighter or cleaner rendition.”

Ninth Circuit Judges Marsha Berzon and Paul Watford concurred. Linn buttressed the holding with a 1997 Ninth Circuit decision involving inflatable versions of cereal box characters like Fruit Loops' Toucan Sam. Entertainment Research Group Inc. v. Genesis Creative Group Inc., 122 F.3d 1211 (9th Cir 1997). Though the inflatable versions included different facial features and expression, any reasonable observer would have seen them as replicas. “The essential character and identity of each were not changed,” Judge Linn wrote.

Federal copyright law doesn't protect sound recordings made prior to Feb. 15, 1972. But the California Legislature granted authors “exclusive ownership” of pre-1972 recordings. Music owners say the legislature was trying to cover the gap in federal law and have been suing over the playing of those old recordings.

McKool Smith and Robert Allen, a former legal affairs chief for Universal Music Publishing Group, represent a class that holds copyrights in the music of Al Green, the Everly Brothers, Mahalia Jackson and others. “When Al Green and his band went into the studio and recorded their vocal and instrumental performances, that was the date that sounds were initially fixed in a tangible medium,” Allen told the Ninth Circuit last fall. The fact that sound engineers may have later optimized them for digital transmission didn't create new derivative works, he argued.

The Ninth Circuit's ABS Entertainment decision “completely vindicates our clients,” Allen said in a written statement.

Robert Schwartz, the Irell & Manella partner who masterminded the defense for CBS, said engineers spend weeks and even months creating a new aesthetic when remastering recordings. That lets the music owners market it as, “If you want to hear the Everly Brothers as you've never heard them before, you need to buy this new remaster.”

“But it's the same recording,” Linn told him at the oral argument before the Ninth Circuit.

“It's not the same recording,” Schwartz replied. “It is the same studio performance.” But the engineer may say, “I want them to hear the bass line more. Or I want them to hear the background singers more.” That, Schwartz said, “is creative expression … sufficient to create a new work that is subject to copyright.”

Linn had also relied on a Tenth Circuit opinion by then-Circuit Judge Neil Gorsuch that held using digital wire frames to create a 3D replica of an automobile did not create an original work. Meshwerks Inc. v. Toyota Motor Sales U.S.A., 528 F.3d 1258 (10^th Cir. 2008).

“From the foregoing,” Judge Linn wrote, “it should be evident that a remastered sound recording is not eligible for independent copyright protection as a derivative work unless its essential character and identity reflect a level of independent sound recording authorship that makes it a variation.”

*****

Scott Graham reports on intellectual property and on the U.S. Court of Appeals for the Federal Circuit for ALM.