No Old Wine In New Bottles: Remastering Does Mean New Sound Recording Copyright, says 9th Circuit

On August 20, 2018, the 9^th Circuit Court of Appeals reversed a lower court ruling that basic digital remastering of pre-1972 sound recordings created a new sound recording copyright. ¹

I wrote a blog post about the ruling at the time of the previous decision. Back then, I noted that this ruling presented two problematic consequences: ²

• By continually remastering a sound recording, the owner could, in effect, create a perpetual copyright
• By continually remastering a sound recording, the owner could frustrate an artist’s right to terminate the work under 17 USC 203 by constantly creating “new” derivative work that only served to move the goalposts at the expense of the artist.

As recounted by the 9^th Circuit:

“The district court explained that ‘during the remastering process, at least some perceptible changes were made to Plaintiff’s Pre-1972 Sound Recordings,’ and that these changes were not merely ‘mechanical’ or trivial changes, but rather reflect multiple kinds of creative authorship, such as adjustments of equalization, sound editing, and channel assignment.’ The court thus concluded that as to the 57 works reviewed by both parties’ experts, the remastered sound recordings were entitled to federal copyright protection as original derivative works.” ³

Again, as I wrote at the time in my blog post:

“In particular, the Court recounted the changes made to Ace Cannon’s “Tuff” which included additional reverberation, and being played in a different musical key and at a faster tempo.

Here’s the problem with this analysis. Merely speeding up the rate at which the source tape is played back will both increase the tempo and change the key in which the song is heard. Not being a musician, the Judge would not know this. To me, merely speeding up playback is a fairly mechanical act, and not nearly as complex artistically as re-adjusting the bass, mid-range, treble and equalization on a multi-track recording.” ⁴

At trial, testimony was introduced from one of the engineers that his goal was to “do a better version of maybe what the production process was at that time because you have a little more control that they had.” ⁵

But the 9^th Circuit rejects this “old wine in new bottles” approach. Making an existing recording better is not the same thing as engaging in creative decisions that substantively change the work.

“Although we do not hold that a remastered sound recording cannot be eligible for a derivative work copyright, a digitally remastered sound recording made as a copy of the original analog sound recording will rarely exhibit the necessary originality to qualify for independent copyright protection.” (emphasis original) ⁶

The Court was particularly critical of CBS’ expert testimony, namely that the recordings were different if there was any difference at all in one of four analyzed characteristics. ⁷ One of these “differences” was if the source recording and the remastered recording had a differential of 1 decibel or more of loudness. ⁸

Again, as I noted previously, loudness is one of those things that tricks the ear of the listener:

“..[I had] a conversation I had with a studio engineer (he worked with The Eagles, among others) about the relative merits of [then] new ‘super-audiophile’ formats such as SACD and DVD audio. He told me that loudness was a great way to ‘trick the ear.’ That in merely making the sounds louder, the general perception of the public was that the recording was now ‘better.’ So, simply making the elements louder in volume is a change in the master, and makes the recording seem better, but does not strike me as an ‘artistic choice’ that warrants new copyright protection.” ⁹

To this I can add, you can increase the “loudness” of the recording by walking a few steps to your stereo and turning the volume knob clockwise. While you are there you can also adjust the emphasis of the bass, treble, and (depending on how much you spent) the mid-range frequencies.

As the Court states:

“[I]f [the] task [of the remastering ] seeks to improve quality, brightness or crispness of sound, [this] is persuasive evidence that the final product likely contains little more than a trivial contribution and does not, in fact, result in an original work.” ¹⁰

And most comprehensively, the Court holds:

“If an allegedly derivative sound recording does not add or remove any sounds from the underlying sound recording, does not change the sequence of the sounds, and does not remix or otherwise alter the sounds in sequence or character, the recording is likely to be nothing more than a copy of the underlying sound recording and is presumptively devoid of the original sound recording authorship required for copyright protection. Such a work lacks originality. This presumption may, of course, be overcome, by showing that the work contains independent creative content, recognizable contributions of sound recording authorship or variations in defining aspects that give a derivative sound recording a new and different essential character and identity.” ¹¹

Note that unfortunately, like many courts, this opinion constantly conflates the concepts of “originality” and “authorship,” two distinct concepts under copyright law. But I think you get the point.

So where can we draw the line? To read this Court, there has to be a substantial change to the underlying recording, not just “remastering.” For example, the version of the song “FM” on the compilation “A Decade of Steely Dan” is the familiar version and runs 4:50. The version on “Steely Dan: Gold” has clearly been remixed, has an extended sax solo not present in full on the previous version, and runs for an additional 16 seconds. The version of Billy Joel’s “Pressure” that appears on his “Greatest Hits” collection is the single version, not the version that appears on “The Nylon Curtain” album. The version on “Greatest Hits” is missing an entire verse. Columbia Records was notorious for cutting down the length of sound recordings. You can hear Billy express his displeasure about this on the song “The Entertainer,” with this lyric:

It was a beautiful song

But it ran too long

If you’re gonna have a hit

You gotta make it fit

So they cut it down to 3:05

You’re not alone Billy. The version of “Make Me Smile” on Chicago’s “Greatest Hits” runs 2:59. On the collection “Group Portrait” it runs 4:35.

But I digress.

This is, I think, the minimum necessary to create a new sound recording copyright. Something must be substantially different, not just tweaking the EQ and adding reverb. Clearer are things like “club” remixes where verses and choruses are rearranged and expanded, these should obviously qualify for new sound recording protection.

So, merely pouring old wine into a new bottle will not work. There’s got to be some new wine in there as well.