Two weeks ago, a California federal judge shocked many people in the musical and legal communities by letting CBS Radio beat a lawsuit over the public performance of pre-1972 sound recordings. Even though state laws have recently been interpreted to protect the broadcast of these recordings without permission, the judge held that the changes made by sound engineers in the remastered versions were creative enough to enjoy a separate copyright as a derivative work. Since CBS was determined as performing these later versions that rendered no public performance compensation under federal law, it escaped the lawsuit.
The ruling triggered a “whoo boy” reaction in some quarters, thanks to the perceived potential that it would extend the copyright term indefinitely, that the recording giants would seek to hold onto copyright as long as possible by putting songs into new formats. Well, what does the Recording Industry Association of America really think?
An answer comes on Tuesday because CBS is fighting with the same plaintiff — ABS Entertainment, owner of recordings by Al Green and others — in New York.
After the California judge reached his decision, CBS’ attorney Robert Schwartz brought it to the New York court’s attention. U.S. District Judge John Koeltl then ordered briefing on the issue.
Now, the RIAA has interjected itself with a letter requesting the opportunity for an amicus brief.
Despite the view that the RIAA might find the remastered ruling beneficial — some have even argued that remastered albums might allow record companies to avoid copyright termination — the recording industry’s top trade group appears to be siding with ABS in this fight. Albeit carefully …
The RIAA tells the judge that it is not taking a position on whether digital remastering adds sufficient originality to create a copyrighted work, but that whatever happens, it shouldn’t compromise the state law rights in the underlying recordings. Richard Mandel, a partner at Cowan Liebowitz, argues on behalf of the RIAA against the argument made by CBS and the conclusion drawn by the California judge of a “right to use” remastered recordings, one that “exonerates” exploitation of work protected under state law.
It’s further postulated that “there can be no dispute that exploiting a post-1972 remastering of a pre-1972 sound recording necessarily entails exploiting materials embodied in that underlying pre-1972 recording” and that “creation of a derivative work cannot limit the scope of protection of the underlying work.”
Yes, wonkery x 1000, but also potentially important coming from the RIAA. Maybe this also means that creation of a derivative work cannot extinguish the limitations on protection of the underlying work?
This article was first published by The Hollywood Reporter.